NYCTA Employee request for lump sum retirement payout denied

 After retiring with an investigation pending a NYCTA employee filed an Article 78 petition alleging that the NYCTA's decision denying a hearing about his request for a lump sum payout for his time on the books was improper.  The court determined that the employee was not entitled to a hearing because he held a non-competitive class title which was classified as confidential or policy-making and New York State Civil Service Law does not guarantee disciplinary hearings for these titles.  Furthermore, the decision was not arbitrary nor capricious.  Read about this New York State Civil Service Law case. 

Notice of Claim Does Not Cover Subsequent Acts

 In a case brought by another law firm, Plaintiff filed a notice of claim about discriminatory acts under New York State Executive Law §296 in 2003. After lengthy absence plaintiff resumed his position with the school district in his suit plaintiff claimed there were discriminatory acts after the notice of claim was filed the Appellate Division, Second Department held that the plaintiff could not recover for acts subsequent to the notice of claim because the school district did not have notice of those subsequent acts. You can read about this discrimination case by clicking here

Taxi and TLC Licensee cases at OATH

The New York City Office of Administrative Trials and Hearings has published an ebook entitled Taxi and TLC-Licensee cases-A Guide to Your Hearing at the OATH Tribunal.  Some of the areas covered in the ebook are: Arrest: Fitness; Compliance: Overcharge: Passenger Complaints and Accidents affecting proposed transfer of a Medallion.  This concise and straight forward guide is a good place to start if you have an upcoming case at OATH.  Click here to get a copy of the OATH Taxi and TLC license case ebook. To speak to me regarding your case please call toll free (888) 998-9984.  

To read about criminal defense services offered by my office please see lidwiattorney.com

Town Law appointing Public Works Commissioner Upheld

 The Town of Colonie appointed Cunningham who was not a resident of the town to a two year term as Commissioner of Public Works.  When challenged the Appellate Division, Third Department held that the existing local law did not supercede the State Public Officers Law sect 3 or Town Law sect. 23 which required the candidate be a town resident.  Thereafter, Colonie adopted Local Law 15 which provided that the Commissioner be only a resident of Albany County.  When Cunningham was appointed again another appeal followed with a different result.  The Court upheld local law 15 and the appointment.  Read about this New York Civil Service case here. 

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ALJ Decided to Drop Charges Against a Sewage Treatment Worker Due to a Lack of Evidence

Department of Environmental Protection v. DeCoursey

 

          Petitioner, Department of Environmental Protection (DEP) brought a disciplinary proceeding under section 75 of the Civil Service Law against Respondent, a sewage treatment worker.  The charges against Respondent were insubordination and inappropriate language to a supervisor. 

          Respondent and a supervisor got into a disagreement.  Petitioner failed to establish that the Respondent failed to obey an order from a superior to return to the control room, as well as credible evidence that the Respondent used improper language aimed at his superiors.  In order to prove insubordination there would need to be clear proof that an order was indeed communicated to Respondent, the order was clear and unambiguous, and that after Respondent heard a clear and unambiguous order, and finally that the Respondent refused to obey instructions.  Petitioner failed to prove that those were met.

          After the hearing the Administrative Law Judge decided that the Petitioner failed to establish the charges by a preponderance of the credible evidence and recommended that the charges be dismissed.

http://archive.citylaw.org/oath/12_Cases/12-666.pdf

Bronxville Library Director resigns withdrawing Article 78

The Bronxville Library is one of the great libraries in New York.  I spent countless hours there in 1982 studying for NYPD Sergeant. This photo shows one of its rooms.  

 

It had a recent controversy went it awarded a raise to its Director then rescinded the raise.  The director responded by filing an Article 78 petition. The director recently ended the controversy when she was hired by the Larchmont library and apparently withdrew her Article 78 petition. Read about this Article 78 case here.

Drug Testing Procedure Was Not Followed Accurately Therefore ALJ Dismissed Charges Against Sanitation Worker

Department of Sanitation v. Anonymous

 

          The Department of Sanitation brought proceeding pursuant to section 16-106 of the New York City Administrative Code against this anonymous respondent.  It was alleged that respondent, a sanitation worker, refused to submit to a drug test in violation of section 5.8 of the Department’s Substance Abuse Policy Procedure.

          Federal law mandates that the Department conduct random substance abuse testing for all employees.  The policy stated that inability to provide a sufficient urine sample within three hours constitutes a refusal to submit where “a Medical Review Officer conducted a medical inquiry and concluded that there exists no medical reason why the sample could not be provided.”

          Respondent was randomly selected for drug testing, and failed to provide a sufficient sample.  However, the drug testing procedure was not followed accurately.  Federal regulations require that respondent was to be urged to “drink up to 40 ounces of fluid” but, respondent was only given half the required amount of water within the time required, three hours.  It was also not “distributed reasonably” over the three hours.

          The OATH ALJ, Kevin F. Casey recommended dismissal of the charge as to the errors in the testing process correlated with respondent’s inability to produce a sufficient sample.

Dep't of Sanitation v. Anonymous (in PDF)

Drug Testing Procedure Was Not Followed Accurately Therefore ALJ Dismissed Charges Against Sanitation Worker

Department of Sanitation v. Anonymous

 

          The Department of Sanitation brought proceeding pursuant to section 16-106 of the New York City Administrative Code against this anonymous respondent.  It was alleged that respondent, a sanitation worker, refused to submit to a drug test in violation of section 5.8 of the Department’s Substance Abuse Policy Procedure.

          Federal law mandates that the Department conduct random substance abuse testing for all employees.  The policy stated that inability to provide a sufficient urine sample within three hours constitutes a refusal to submit where “a Medical Review Officer conducted a medical inquiry and concluded that there exists no medical reason why the sample could not be provided.”

          Respondent was randomly selected for drug testing, and failed to provide a sufficient sample.  However, the drug testing procedure was not followed accurately.  Federal regulations require that respondent was to be urged to “drink up to 40 ounces of fluid” but, respondent was only given half the required amount of water within the time required, three hours.  It was also not “distributed reasonably” over the three hours.

          The OATH ALJ, Kevin F. Casey recommended dismissal of the charge as to the errors in the testing process correlated with respondent’s inability to produce a sufficient sample.

Dep't of Sanitation v. Anonymous (in PDF)

 

Department of Transportation Failed to Follow Guidelines for Employee Lateness and the ALJ Recommended Lesser Punishment

Department of Transportation v. K.M.

 

          The Petitioner, Department of Transportation, brought about these proceedings for employee disciplinary action under section 75 of the Civil Service Law against respondent, a highway repairer for absence without leave and excessive lateness. 

          Respondent had been with the Department since 1985 and was characterized as a hard worker with a poor attendance record. 

          Respondent did not argue that he had been AWOL for several days and late on ten separate occasions. 

          The ALJ had agreed with the Department of Transportation on each instance of respondent’s absence without leave except for one.  This instance was where respondent was denied emergency leave in order to bring his wife to see her brother who was undergoing a biopsy and was being treated for an unknown blood disorder, and still went.  “According to the doctor, the presence of respondent and family members was important to the patient’s well being.” 

          The ALJ believed that because this was an exceptional circumstance this AWOL instance should be dismissed. 

          The Department rules concerning excessive or habitual lateness is expressed by the Citywide Employee Lateness Policy.  “That policy provides for a five minute grace period and defines excessive lateness as seven or more late arrivals.” The policy mandates that a supervisor meet with the employee after the fourth lateness to explain the policy to them and develop methods to help avoid tardiness in the future.  As well, the employee must be warned of the possibility of disciplinary action following further lateness. 

          The ALJ established that it was unclear if the respondent was warned of how future lateness could result in disciplinary action, the petitioner’s compliance with the policy was not followed.  He also expressed that four of respondent’s lateness’s were less then ten minutes each and that excessive tardiness is considered seven within a twelve month period.  Therefore the excessive lateness charge was dismissed. 

          Petitioner sought a 20-day suspension without pay.  Since the respondent had no previous disciplinary record and was expressed as a good worker who needed to improve his attendance.  The ALJ therefore recommended a 10-day suspension.  Dep’t of Transportation v. K.M. (in PDF)

 

Correction Officer Receives 60 Days Suspension for Excessive Use of Force

In the Matter of Department of Correction v Stanley Saint-Phard

In this disciplinary proceeding, pursuant to Article 75 of the Civil Service Law, Respondent, a Correction Officer, allegedly used impermissible force against an inmate by dispersing a chemical agent in the inmate’s face and also placed the inmate in a chokehold.

On October 16, 2008, Eric Smith, an inmate at George Motchan Detention Center was mopping up an area near the A station. Respondent entered the area and asked Smith to return to his cell. After some conversation between the two, Respondent dispersed oleoresin capsicum (“OC”) spray towards Smith’s face. Then Smith began to leave the room when Respondent grabbed him and walked him to the front of the A station wall. Smith began to remove one of his hands from the wall when Respondent brought him to the ground and restrained him.

There were several testimonies by witnesses, but the crucial evidence in this case was the videotape of the incident. The videotape did not have sound, but it depicts that Smith’s hands were behind his back when Respondent used the OC spray within a the three feet radius and is also shows that Respondent’s left arm was around Smith’s neck and he maintained that hold while forcing him to the floor.

First, the video evidence showed that Smith was compliant and not aggressive immediately prior to being sprayed and contradicts Respondent’s written statement. Respondent use of the OC spray was prohibited under the Directive 4501R-E. Directive 4501R-E states that “that dispersal of hand-held chemical agents is authorized to defend oneself, another employee, inmate or visitor, to maintain the safety and security of the facility, or to enforce Department rules where necessary to promote the good order and safety of the facility.” Also, Respondent use of the OC spray was impermissible because the directive states that use the spray in less than three feet away from the intended target because spraying the OC spray in close range can cause severe eye and skin irritation or other injuries.

Second, Respondent’s written statement he maintained that he put Smith in an upper body control hold. However, in. the videotape showed that Respondent pushed Smith up against the wall and then put his arm around Smith’s neck. Directive 5006R-C § V (C) prohibits the use of the chokehold except in situations where there is deadly physical force. According to Directive 5006R-C § V (C), you are allowed to use deadly physical when there is no other reasonable alternative to stop or prevent an escape, or when an officer must “defend him/herself of another person from what he/she reasonably believes to be the use or imminent use of Deadly Physical Force by the inmate.” Respondent’s use of the chokehold was unnecessary and is constituted as excessive force.

Lastly, Respondent written statement and use of force report was false and misleading and he submitted the report approximately eleven days after the incident, on October 27, 2008. When an officer is in a use of force incident, a report must be submitted before leaving the facility on the day of the incident. The only exception to this is if you are injured than the use of force report can be submitted at a later time. Respondent claimed that he sustained an injury during the use of force incident and was immediately taken to the hospital. Respondent acknowledges that he may have been back to work before October 27, but cannot provide any plausible reason as why he did not submitted the use of force report earlier.

The Administrative Law Judge has come to the following conclusions: (1) although there was no evidence of actual choking, the use of pressure around someone’s neck can potentially cause serious or even fatal consequences; (2) the use of the OC spray at a close range is also dangerous because of the risk of retinal damage with a pre-existing condition; and (3) submission of a late and misleading use of force report is wrong. Due to Respondent have no prior disciplinary record during his five years as a Correction Officer, it is recommended that Respondent be suspended for 60 days.

Read more about this case here.

To read about more similar cases go to http://www.sheerinlaw.com/?id=78.

Petition Dismissed Due to Four Month Statue of Limitations

In the Matter of Jerome Skrine v New York City Department/ Board of Education

Petitioner brought this Article 78 proceeding to seek to compel Respondents to accept the revocation of his resignation.

On October 31, 2008, Petitioner resigned from his position as a tenured special education teacher. In a letter dated June 10, 2010, Petitioner stated that he wanted to revoke his resignation. However, the Board of Education refused verbally. Petitioner went on to admit that he resigned in October 2008 while there were disciplinary charges that were pending against him and the Board of Education did not grant him his due process.

Petitioner also maintained that this Article 78 proceeding is timely because “…the statue of limitations runs from the rejection of the revocation itself, which occurred in June 2010.” Under the Chancellor Regulation C-205(28), Petitioner claimed that he allowed “…to revoke his resignation within five years of the resignation, BOE is mandated to accept the revocation.”

The Court ruled that Petitioner’s action to revoke his resignation in October 2008 was barred by the four month status of limitations. Therefore, any claims Petitioner made after March 2009 was barred.

The court decided to grants the Respondent’s cross motion to dismiss on the ground that the statue of limitations expired and for failure to state a cause of action was granted. The petition was denied and the proceeding was dismissed.

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

Court Confirms Petitioner's Termination for Misconduct.

Court Confirms Petitioner’s Termination for Misconduct.

Matter of Gibbons v. New York Unified Ct. Sys., Off. of Ct. Admin.

In this Article 78 case, Petitioner, Grace Gibbons, sought review of Respondent’s decision that found her guilty of incompetence and misconduct and terminated her employment.

Gibbons was a court reporter for the District Court in Nassau County for approximately 22 years. In May 2007, Respondent served Gibbons with a notice of disciplinary charges. At the hearing, the Office of Court Administration (OCA) stated that Petitioner was insubordinate to supervisors and a District Court Judge, failed to produce transcripts in a timely matter, and was excessively absent without sufficient notice, which left the District Court short notice to find a replacement.

In December 2008, the hearing officer recommended that Petitioner be terminated from his position. A few months later, on February 4, 2009, the Deputy Chief Administrative Judge found the Petitioner guilty of the misconduct and incompetent in at least 20 specifications. Thereafter, Gibbons was terminated.

In an Article 78 proceeding, the Appellate review is limited to whether that determination was supported by substantial evidence. Substantial evidence is defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” and “[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists.”

The Appellate Division found that the decision was supported by substantial evidence and the penalty of termination did not shock one’s sense of fairness.

The determination was confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

Retirement Benefits Denied Due to Substantial Evidence Presented by New York State

Retirement Benefits Denied Due to Substantial Evidence Presented by New York State

In the Matter of Stephen C. Caruana v. Thomas P. DiNapoli, as Comptroller of the State of New York, et al..

Petitioner, Stephen C. Caruana, sought to review a decision of Respondent which denied his application for accidental disability retirement benefits.

In March 2006, Petitioner, a police officer, applied for accidental disability retirement benefits. Caruana claimed that he was permanently incapacitated due to neck and back injuries that were a result of three work-related incidents. Initially, his application was denied and petitioner requested a redetermination, therefore, a hearing was held. The Hearing Officer concluded that Petitioner “…failed to establish that such incapacity was caused by either 1987 incident or the 2003 incident, resulting in the denial of his application, an Article 78 followed.

The Appellate Division stated that the Petitioner has the burden of proving that his injuries were the results of the alleged incidents and in deciding whether Petitioner has fulfilled this burden, Respondent is entitled to produce “…conflicting medical evidence and to credit the opinion of one expert…” over the other.

In 2007, Petitioner had an orthopedic surgeon perform a spinal fusion surgery who agreed that Caruana condition was related to the 1987 incident and a chiropractor who agreed that his disability is related to the 1987 and 2003 incidents. Respondents brought in a board certified surgeon, Austin Leve, to examine Petitioner and review his medical records in August 2006. Leve concluded that Caruana’s injuries were not significant enough of an injury to permanently incapacitate him.

The court concluded that Respondent’s decision was supported by substantial evidence. Therefore the decision was confirmed, without costs and the petition is dismissed.

Read more about this Article 78 case here.

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Court Officer Terminated for Acts of Misconduct

In the Matter of Thomas Hughes v. New York Unified Court System, Office of Court Administration.

Pursuant to Article 78, Thomas Hughes, Petitioner, sought to review a decision of Respondent which adopted the recommendation of a hearing officer, who found that “…the petitioner engaged in acts of misconduct and incompetency prejudicial to the good or and efficiency of the New York State Unified Court System and adversely reflecting on his fitness to continue as a court officer…,” which resulted in his termination.

In February, 2007, Respondents filed administrative charges against Petitioner. Hughes requested a hearing, where a hearing officer found that Petitioner had accelerated his vehicle “...while it was in close proximity to his supervisor as the supervisor was entering a crosswalk, reported late for duty several times, was repeatedly insubordinate to several supervisors, failed to keep his uniform in proper condition, failed to keep his weapon properly loaded, and kept an impermissible metal-jacketed round in his weapon, which was capable of piercing courthouse walls.

In October of the next year, the Office of Court Administration ordered that Petitioner be terminated from his position. By February, 2009, Hughes filed this appeal. According the Appellate Division, an administrative decision made after a hearing mandated by law is limited to whether that decision is supported by substantial evidence. Substantial evidence “…relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact…”

The court concluded that the decision was support was substantial evidence and that the penalty of termination of employment is not disproportionate to the misconduct as to shock the conscience.

The petition was denied and the proceeding was dismissed with costs.

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

Performance of Duty Disability Retirement Benefits Application Denied; Petitioner Suffered from Various Risk Factors Before Heart Attack.

In the Matter of Juan C. Rivera v. Thomas P. DiNapoli, as Comptroller of the State of New York, et al.

In this Article 78, Petitioner sought for to review a determination of Respondent which denied Petitioner’s Application for disability retirement benefits.

In 2004, Petitioner Juan C. Rivera, a correction officer, suffered a heart attack after becoming sick while at work. Petitioner could not return to work due to his medical condition, therefore he applied for disability retirement benefits. His application was denied by the New York State and Local Retirement System because his disability was not “…a result of the performance or discharge of his ….duties.”

A Hearing Officer also agreed and concluded that Rivera was not entitled to the performance of duty disability retirement benefits. The Comptroller adopted the Hearing Officer’s findings and denied Petitioner’s application. Petitioner filed this Article 78 proceeding to annul the determination.

According to Social Security Law § 507-b (c), where a person has “successfully passed a physical examination on entry into services as a correction officer” that did not disclose proof of heart disease and afterward become disabled as a result of a heart condition sustained throughout employment, it is assumed that the disability was “incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence.”

The Retirement system needed to rebut the presumption that petitioner’s disability happened while in the performance and discharge of his duties as a correction officer. Therefore, the Retirement System brought in a cardiologist to examine petitioner and concluded that although work-related stress can heighten the symptoms of coronary artery disease, petitioner disease was not related to his employment. The cardiologist referenced the various risk factors that are commonly associated with coronary heart disease that the petitioner suffered from. This included hyperlipidemia, diabetes mellitus, obesity and hypertension.

The Appellate Division concluded that the petitioner’s application for disability retirement benefits was properly denied and the petition is dismissed without costs.

Read more about this Article 78 case here.

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Petitioner Granted Back Pay With Interest

John Tipaldo v Christopher Lynn, etc., et al.

Pursuant to Article 78, plaintiff appealed an order by the Supreme court that granted his back pay without interest in his Civil Service Law § 75-b action. The plaintiff is also asking for the court to grant his reinstatement to the prior position.

In August 1996, plaintiff, John Tipaldo, was promoted to the position of Acting Assistant Commissioner for Planning by the New York City Department of Transportation (DOT). Plaintiff, which was a salary of $55,000 and if the position became permanent, he would receive a $25,000 increase. Six months later, plaintiff was demoted from the new position. As determined in the Civil Service Law § 75-b action, the demotion was in retaliation for the plaintiff reporting a supervisor violated bidding rules. Due to the demotion, the plaintiff new position never became permanent and he never received the $25,000 salary increase.

At the trial court, plaintiff presented an expert economics testimony to establish the total amount of back pay the plaintiff was entitled to. The expert determined that if the plaintiff had not been demoted he would have received the $25,000 increase and would have been making $81,000. The expert also calculated the amount of money the plaintiff would have earned through the time of trial if he was not demoted by comparing two managers with similar position and salary to that of the plaintiff and applied a statutory interest rate of 9% to the lost earning. The expert arrived at a total of $662,721.

The Appellate Court found that the back pay calculated by the plaintiff’s expert had sufficient support and that the plaintiff was likely to have received the raise.

Therefore, it was determined that the predetermination interest is available for those who claim under the Civil Service Law § 75-b. Further, it Supreme Court granted an interested award because the defendants did not offer any counter argument as to why the plaintiff’s expert testimony is flawed. Finally, the Supreme Court order that the plaintiff be reinstated “to the same position held before the retaliatory personnel action, or to an equivalent position.”

Read more about this Article 78 case here.

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Plaintiff's Complaint was Dismissed on the Grounds that FELA Did Not Apply

Paul Zuckerberg, et al. v Port Authority of New York and New Jersey

Pursuant to the Federal Employers’ Liability Act, the plaintiffs sought to recover damages for personal injuries.

The injured plaintiff was employed by the defendant as a police lieutenant. One day, the injured plaintiff was stationed at John F. Kennedy International Airport. While on duty, he tripped over a door saddle while exiting the tour commander’s office. The injured plaintiff applied and received worker’s compensation benefits for his injuries from the fall.

The plaintiff and his wife, then commenced this action against the Port Authority pursuant to the Federal Employers’ Liability Act (FELA). Port Authority argued that FELA did not apply to this action and that the injured plaintiff was already covered by worker’s compensation. Therefore, they moved for summary judgment to dismiss the complaint. In opposition, the injured plaintiff asserted that he was assigned to a central lieutenant’s pool and would be randomly to different areas. This included areas in the Port Authority Trans-Hudson Corporation.

The court states that FELA was inapplicable to this case. However, plaintiffs still asserts that the Port Authority, “in its capacity as the operator of an interstate railway transit system, may be subject to liability as an interstate "common carrier by railroad" within the meaning of FELA.”

The court concluded that FELA still did not apply under the circumstances of this case and granted Port Authority motion for dismissing the complaint.

Read more about this Article 78 case here.

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Petitioner Name Removed from the DOE's Ineligible/Inquiry List After Criminal Charges are Dismissed

Matter of the Application of Philomena Brennan v New York City Department of Education

 

 

Petitioner, a tenured teacher, started an Article 78 proceeding against the New York City Department of Education. She wanted her name to be removed from the DOE’s Ineligible/Inquiry List and for the DOE to allow her to withdraw her resignation.

 

In the spring of 2006, petitioner was working as a full-time teacher Frederick Douglas Academy in Brooklyn. At the end of the school year, the principal informed petitioner that she was receiving an unsatisfactory rating. Immediately after being informed of her “U” rating, petitioner formally resigned.

 

A few years later, petitioner began to take steps to with her resignation. In January 2009, she returned to the school to speck to the principal. Petitioner saw the principal and was escorted to her office and told to wait. Approximately ten minutes later, petitioner was “handcuffed and charged with misdemeanor of trespass and the violation of harassment.” She immediately informed the DOE of the arrest, as the rules are stated and she was placed on the DOE’s Ineligible/Inquiry List, which makes her ineligible for rehire or for a teaching assignment.

 

In June 2009, all criminal charges against the petitioner were dismissed. So, she requested the DOE remove her for the DOE’s Ineligible/ Inquiry List. The IA Deputy Chancellor Teaching and Learning signed an undated letter stating she has been approved to be removed for the list. However, due to no date on the letter, the court determined that the effective date would be June 11, 2009, when petitioner initially applied to have her name removed from the list. Now, petitioner sought to have her resignation withdrawn, but she had to wait for all paperwork regarding the list is completed. Therefore, the petition to withdraw he resignation is premature.

The petition was granted as it requests the removal of the name of Philomena Brennan, petitioner, from the Ineligible/Inquiry List maintained by respondent New York City Department of Education, effective June 11, 2009 and the court ordered that respondent's cross-motion to dismiss petitioner's claim regarding the withdrawal of her resignation as a teacher is granted, and that claim is dismissed without prejudice and without costs or disbursements to either party due to it prematurity.

 

Read more about this Article 78 case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

Petition Dismissed; Petitioner Failed to File Motion within Respect to the Statue of Limitations

Matter of the Application of Robert F. Hayes v The City of New York Department of Citywide Administrative Services, The New York City Fire Department, The City of New York, and The Test Validation Board for Examination (PRO) Battalion Chief

 

According to this Article 78 case, petitioner sought to prevent the Test Validation Board of the NYC Fire Department from marking three questions void on the answer key for the Battalion Chief examination.

 

Petitioner, a Captain in the NYC Fire Department, was eligible was for promotion to Chief Battalion. On August 16, 2008, petitioner sat for the Promotion to Battalion Chief Examination No. 8511. He received notice of the final answer key through a letter dated mid-December 2008. Originally, the Test Validation Board stated that the answers to questions 15, 46, and 85 were A, A, and D. Petitioner’s answer key followed accordingly. However, in the final determination, the Test Validation Board allowed A, B, C and D to be the correct answers for questions 15, 46 and 85.

Hayes declared that the board acted outside the reach of its authority as stated in Civil Service Law § 50-a. According to Civil Service Law § 50-a, a candidate may file a petition pursuant to Article 78 within thirty days after service of the notice of availability of the determination of the test validation board.

Petitioner was given notice of the Board’s determination on December 17, 2009. Almost 4 months later, on April 12, 2010, petitioner filed a petition under Article 78. His petition was dismissed because it was outside the statute of limitations set in Civil Service Law § 50-a.

The principle of an Article 78 proceeding is to allow the distressed candidate an chance to dispute why the determination of the administrative agency was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion."

The court dismissed the petition without costs and disbursements to the respondents.

 

Read more about this Article 78 case here.

 

 

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

Petitioner granted sick leave pursuant to CPLR Article 78

 

Matter of Richard J. Sherwood v Town of Lancaster

In this Article 78 case, the petitioner sought to appeal the Supreme Court ruling that he was ineligible to receive credit for unused vacation and sick leave accrued as of the date of his retirement.

According to the Appellate Division, petitioner resigned from his position as Town Attorney, therefore making him ineligible for a credit of unused vacation days. Because the petitioner chose to resign effective immediately, he is not entitled to that credit, which follows the explicit terms of Article 3 of the Collective Bargaining Agreement.

Petitioner’s also alleges that he is entitled to credit for unused sick days, which falls under Article 5 of the Collective Bargaining Agreement. The court concluded that the CBA provisions concerning retirement unambiguously apply to petitioner, entitling him to a credit for unused sick leave that he accrued. Previously, the court made a mistake in concluding that Article 5 of the CBA applied only to those who have actually applied for retirement through NYS Employee’s Retirement System to receive credit for accumulated sick days. The CBA stated nothing to this effect. Therefore, the court concluded that the retirement stated in Article 5 of the CBA applies to the petitioner, making him eligible to a credit for accrued sick days.

The judgment was modified. Petitioner’s claims under the CBA and under the Retirement and Social Security Law § 41 (j) were granted for only the accumulated sick days from the date of petitioner's reappointment as Town Attorney through the date of his retirement.

Read more about this Article 78 employment case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

 

Nassau PD physical test disqualification upheld

 

Thursday, July 15, 2010

An administrative determination will be sustained by the court unless it is shown to be arbitrary or capricious and without a rational basis

 
An administrative determination will be sustained by the court unless it is shown to be arbitrary or capricious and without a rational basis
Pereira v Nassau County Civ. Serv. Commn., 2010 NY Slip Op 51209(U), Decided on June 14, 2010, Supreme Court, Nassau County, Judge Thomas Feinman, [Not selected for publications in the Official Reports]

The Nassau County Civil Service Commission disqualified Victor Pereira for appointment as a Police Officer after he had passed the written test for the position. Claiming that the Commission’s decision “was made in violation of lawful procedure, was arbitrary and capricious, as abuse of discretion, and effected by law, and not supported by substantial evidence, Pereira as the court to vacated the Commission’s action.

The basis for the Commission’s action was that Pereira failed to meet the physical agility examination for the position.

Pereira was in an age group of applicants that were required to complete 35 sit-ups in one minute in order to avoid disqualification and move on to the final test, a1.5 mile run.

However, Pereira examiner determined that he only completed 28 sit-ups in the necessary and correct form, and therefore, he was disqualified from further evaluation for the appointment as a police officer. Pereira, on the other hand that he had completed 44 sit-ups and that the monitor failed to give him the appropriate credit for his performance.

Judge Feinman said that the Commission’s determination is subject to review under the "arbitrary and capricious" standard of CPLR §7803(3). In applying this standard, said Judge Feinman, an administrative determination will not be disturbed unless the record shows that the agency's action was "arbitrary, unreasonable, irrational or indicative of bad faith."

"Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" and the court's inquiry is limited strictly to a determination of whether a rational basis exists for the agency's actions.

After considering the evidence presented by the Commission concerning the administration and rating of Pereira's sit-ups during the physical agility test, the court ruled that the Commission’s determination was neither arbitrary nor capricious and had a rational basis for its determination and dismissed Pereira’s petition.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51209.htm

 

 
 
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Teachers lose positions but not pay

Since 2006, more than 1,000 New York City teachers have lost their permanent assignments yet remain on the Department of Education payroll. These teachers are referred to as the Absent Teacher Reserve pool (ATRs). They have not lost their jobs due to any wrongdoing but due to school closings or budget cuts. ATRs are assigned to schools across the city to act as substitute teachers or administrative help. The salaries for these ATRs are paid by the department’s central office and not individual schools.

Many ATRs are unmotivated to seek new employment. The last two New York City job fairs only brought in about ten percent of the ATRs invited. Even the school chancellor has admitted that some people just prefer not to work. While the DOE offers financial incentives to schools to encourage them to hire ATRs, the principals do not always get responses from the ATRs they contact to fill positions and sometimes the responses they do get are half-hearted.

New York City expects more teachers to wade into the ATR pool due to budget cuts.

Read the full article here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Article 78 appeal to annul termination denied due to residency discrepancy

Matter of James Johnson v Town of Amherst

In this Article 78 case, petitioner sought to annul the determination of the Town of Amherst terminating his employment for failure to meet the residency requirement of the Town Code. Employees are required to be domiciliaries of the town which means they must have a permanent home in Amherst. Respondents presented evidence at the hearing which established that petitioner’s family lived in a home in Elba, New York. Additionally, petitioner listed this address in Elba on his income tax forms and admitted that he had no intention of moving to Amherst and only established residency with the Town to comply with the requirements of his employment. Therefore, the Court must agree with the decision of the Town of Amherst that petitioner is a domiciliary of Elba and thus the Town’s decision is supported by substantial evidence and must be upheld.

Accordingly, the Supreme Court confirmed the determination and dismissed the proceeding without costs.

Read more about this Article 78 employment case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Decreasing provisional employees in the workforce

Lisa Colangelo of the New York Daily News recently wrote about the issue of provisional workers in New York City. Over two years ago, the city was ordered to reduce the number of provisional employees in the workforce. The Department of Citywide Administrative Services has developed a five-year plan to reorganize civil service titles and give additional exams. Provisional employees are hired when the city needs to fill a position but lacks a list of candidates who have passed the exam for that position. These employees should then be subjected to a test for their job within nine months of being hired but this does not always happen. Sometimes when individuals take the test, they are not able to pass and lose their provisional job. The city is working on improving this process and holding the exams in a more timely fashion.

Read the full article here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Article 78 appeal for revoked insurance license denied

Matter of Jessica Coulter v State of NY Insurance Department

Petitioner brought about this Article 78 case to review a determination of the State of New York Insurance Department adopting the recommendation of a hearing officer and revoking petitioner’s insurance broker license in New York. Petitioner was charged with untrustworthiness and incompetence as an insurance producer based on her license being revoked by the state of New Jersey and her owing restitution and fines of over $100,000. Additional charges of misconduct included failure to remit payroll taxes to the IRS for a period of eight years and making a false statement under oath. After a hearing regarding these charges, the hearing officer recommended that petitioner’s license be revoked in New York and the Department adopted this recommendation. Petitioner then brought about an Article 78 appeal contended that there was not sufficient evidence to support the determination. The Court disagreed and felt that the evidence was, in fact, sufficient and the penalty of revocation was not disproportionate to the offences committed and thus, not shocking to one’s sense of fairness.

Accordingly, the Supreme Court confirmed the determination, denied the petitioner, and dismissed the proceeding, with costs.

Read more about this Article 78 employment case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Business Manager's termination is annulled and remitted for review

Matter of Jeffrey Baker v Poughkeepsie City School District

Petitioner, a Business Manager for the Poughkeepsie City School District, brought about this Article 78 proceeding to review a determination of the School District adopting the recommendation of a hearing officer which found petitioner guilty of eight charges of misconduct and incompetence and terminated his employment.

In July 2007, petitioner was charged with eight counts of misconduct and incompetence and subjected to a disciplinary hearing where two members of the Board testified. The hearing officer found the petitioner guilty of all the charges brought against him and recommended termination. The members of the Board then issued a final determination terminating the petitioner’s employment which resulted in petitioner bringing about this article 78 proceeding.

The two Board members that testified at the disciplinary hearing were personally involved in the matter and should have disqualified themselves from reviewing the recommendation and being involved in the decision of this matter. Also, the petitioner is entitled to pack pay and benefits regardless of whether he is terminated or not.

Accordingly, the Court granted the petition, annulled the determination, with costs, and remitted the matter to the Board of Education for a review of the findings of the hearing officer and a determination of the back pay amount and benefits owed to the petitioner.

Read more about this Article 78 termination case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Probationary teacher's retaliatory termination mandates judicial review

Matter of Lisa Capece v Margaret Schultz, as Community Superintendent of Community School District 31

Petitioner brought about this Article 78 proceeding to review a determination of Margaret Schultz, Community Superintendent of Community School District 31 of the New York City Department of Education terminating petitioner from her position as a probationary public school teacher. Petitioner began teaching in 2005. Her probationary term was supposed to end in 2008 but she was allegedly coerced into an “Extension of Probation Agreement” in 2007 which extended her probationary period by one year to allow petitioner to demonstrate improvement in her alleged areas of difficulty. During the extended probationary period, petitioner received two unsatisfactory evaluations. She was also required to attend several disciplinary meetings due to alleged instances of misconduct for violating the school’s telephone policy and altering the program schedule without prior permission. Due to these incidences, the Superintendent notified petitioner of her termination. Petitioner then appealed this decision to the Department of Education’s Office of Appeals and Reviews. A hearing was held and the recommendation to discontinue petitioner’s probationary service was upheld. The Superintendent re-affirmed her decision and petitioner commenced this Article 78 appeal.

Petitioner alleged in her petition that she was the victim of harassment and discriminatory treatment in retaliation for her union activities. She argued that she had received only satisfactory reviews until she became involved in activities as the union co-chapter leader. Petitioner even filed a complaint with the Chancellor of the Department of Education asserting that she was being subjected to harassment but the complaint was denied due to lack of evidence. Respondents maintain that a probationary employee can be terminated at will and since petitioner’s record show unsatisfactory work performance and misconduct, the termination was not made in bad faith.

The Court feels that petitioner met her evidentiary burden of producing sufficient evidence to raise a material issue of fact regarding whether or not her termination was made in bad faith as a retaliatory measure to punish her for her activities in the local teachers’ union. The evidence shows that the unsatisfactory performance evaluations and alleged incidences of professional misconduct occurred only while petitioner was engaged in union activities and therefore the retaliatory nature of petitioner’s termination cannot be determined on the facts so far provided. The Court feels that judicial review is mandated and the matter must proceed to trial.

Accordingly, the Court granted the petition to the extent that the parties must appear for a preliminary conference. The trial date for this case is still pending.

Read more about this Article 78 termination case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Petitioner awarded back pay for time suspended beyond thirty days

Matter of Elizabeth Miller Nabors v Town of Somers

Petitioner, Elizabeth Miller Nabors, began working part time for the Town of Somers in 2003. Though she worked about 10 hours a week, Nabors submitted claims to the Unemployment Insurance Division of the New York State Department of Labor (UID) stating that she was not working at all. Once her position became full time, she received notice from the UID informing her that she was not entitled to the benefits that she had received and was subject to a penalty due to her misrepresentation of her eligibility. Nabors then requested a hearing before the Unemployment Insurance Appeal Board which resulted in the administrative law judge confirming the initial determination. The Town then commenced a disciplinary action against Nabors charging her with two counts of misconduct and one count of incompetence and placed her on an unpaid suspension. A hearing was scheduled for March 2006.

Nabors’ counsel requested the hearing be adjourned to a later date. Due to various other adjournments, the hearing was not conducted until July 2006. The hearing officer issued a decision in January 2007 finding Nabors guilty of all three charges. The final resolution, terminating petitioner’s employment was entered in May 2007; 15 months after Nabors suspension began.

Nabors then commenced this appeal to review the decision, alleging wrongful discharge, and to recover back pay for the period of the suspension exceeding 30 days. Since the determination to terminate petitioner was supported by substantial evidence and was not so severe a penalty as to shock the conscience, the Court dismissed this part of the petition. The Court did however agree that Nabors was due to receive back pay for the period of time she was suspended beyond the 30 day limit even though she was found guilty of the charges against her.

Accordingly, the Court granted the petition to the extent of awarding petitioner back pay, otherwise denied the proceeding, and remitted the matter to Supreme Court for a hearing to determine the amount of back pay to be awarded.

Read more about this Article 78 employment law case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Teacher awarded 28 days pay for late notice of termination

In this Article 78 case, petitioner, David Vetter, was a probationary teacher for the Ravena-Coeymans-Selkirk Central School District for the 2005-2006 school year. In 2006, the Board of Education voted to terminate petitioner due to allegations of misconduct but did not provide written notice of this decision until a month later – two days before the effective termination date. Petitioner then commenced this Article 78 proceeding to seek 28 days of salary in accordance with Education Law § 3109-a, a name clearing hearing, and attorney fees.

The Board agreed to the name clearing hearing for petitioner but argued that he was not entitled to the 28 days of pay because the applicable notice period occurred during summer vacation when petitioner would not have received compensation. The Supreme Court denied petitioner’s Education Law § 3109-a claim but granted his application for counsel fees. The Appellate Division then reversed the award for attorney fees and affirmed the denial of pay.

Education Law § 3109-a requires school authorities to provide teachers with a written notice of termination at least 30 days prior to the effective termination date in order for them to have the opportunity to seek other employment. When the notice is late, teachers are entitled to one day’s pay for each day the notice was late. In this case, the Board agreed that they were late with the notice but since the time period was over summer vacation when petitioner would have received no salary, felt that he was not due any pay. Since other similar cases were granted pay, even over summer vacation, the Court concluded that a remittal was necessary for the calculation of 28 days’ salary. The Court agreed with the Appellate Division’s determination that petitioner was not entitled to attorney’s fees.

Accordingly, the Supreme Court modified the petition remitting to Albany Supreme Court for further proceedings.

Read more about this Article 78 termination case here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Civil Service Law S4562

A new Civil Service Bill, S4562, was passed that will change the probationary period for employees of the New York City Health and Hospitals Corporation appointed to a title on the non-competitive class to one year. The current five-year probationary period is considered unfair and unnecessary by many health workers. This new bill shortens the probationary period to one year which should be adequate time for a competent manager to determine that an employee is performing at a competent level and is deserving of the right to a hearing prior to being fired.

Read more about the new Civil Service bill here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Article 78 appeal to teacher's termination denied

Matter of Kevin Cummins v New York City Department of Education

Petitioner brought about this Article 78 proceeding to appeal his termination by the New York City Department of Education, claiming it was arbitrary and capricious and made in violation of his right to due process.

Petitioner began working for the Department of Education in 2000 as a non-tenured teacher. In March 2008, he was accused of corporal punishment and sent to a reassignment center. Later that year he was denied his Certification of Completion of Probation and it was recommended that his license be terminated. The Department of Education’s reason for termination was two unsatisfactory classroom observations, two allegations of verbal and corporal abuse, and a history of lateness. At the hearing, the Chancellor’s Committee upheld the recommendation to deny certification. Petitioner then commenced this Article 78 appeal to annul the determination.

Petitioner argued that he was not allowed to call witnesses to his hearing and therefore the determination to terminate his employment should be annulled but he did not raise this objection at the time of the hearing and therefore it cannot be considered for the first time in reviewing the administrative proceeding.

Since petitioner was a probationary employee and probationary teachers can be terminated at any time during the probationary period for any reason and petitioner failed to establish that the Department of Education’s determination was arbitrary and capricious or an abuse of discretion, the Court must uphold the respondent’s decision.

Accordingly, the Supreme Court denied the petition and dismissed the proceeding.

Read more about this Article 78 NYC Department of Education appeal.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Teacher's Article 78 petition for extended employment denied

Matter of Janet Wilson v Board of Education of Harborfields Central School District

In this Article 78 proceeding, Petitioner Janet Wilson sought to review a determination of the Board of Education of the Harborfields Central School District declining to extend her employment contract. Supreme Court granted her appeal which resulted in the Board pursuing an appeal.

Petitioner alleged that the meeting in which the Board passed their resolution declining to extend Petitioner’s employment contract had inadequate notice pursuant to the Open Meetings Law. The Court felt that even if there was a technical violation, Petitioner failed to establish good cause to annul the Board’s determination.

Accordingly, the Supreme Court reversed the judgment, denied the petition and dismissed the proceeding.

Read more about this Article 78 Board of Education appeal here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Niagara County legislator resigns when residency is questioned

Andrea McNulty, a North Tonawanda Democrat decided to step down from her position following accusations that McNulty had violated a section of the public officer’s law which requires candidates to live in the districts that they represent. County Democrats first accused McNulty of violating this residency requirement back in May when they discovered through documents obtained under state Freedom of Information Law that McNulty’s husband owned a home in Pendleton. Though McNulty claimed to still reside at the North Tonawanda home, she announced that she would not seek re-election due to “many personal factors”. Democratic Party Chairman speculated that the resignation was more likely due to the fact that the committee was planning on filing an Article 78 proceeding to have McNulty’s legislative post vacated if she did not step down.

Read full article here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Late notice of claim allowed by Supreme Court

Michael Picciano v Nassau County Civil Service Commission

The plaintiff in this case was denied appointment as a correctional officer due to his color vision deficiency. The Commission advised him of their decision and informed him that any submissions must be filed within 15 days. 

On November 22 the plaintiff attempted to fight the decision, but the Commission proceeded to inform him that it was too late. In May of the next year the plaintiff file an action against the Commission claiming that his disqualification was unlawful discrimination. He sought restoration to eligibility list, appointment to correctional officer position and damages in the form of lost pay and benefits. 

Plaintiff also filed a late notice of claim which the Supreme Court determined allowable on the basis that the Plaintiff’s uncertainty over whether a notice of claim was needed was enough of an excuse for the Plaintiff’s failure to provide one in a timely manner. The issue was appealed, but it stood that the Supreme Court appropriately exercised its discretion in permitting late notice of claim. 

To read about Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Nightclub's appeal against unfair liquor authority penalties granted

Café Concerto Ltd. v New York State Liquor Authority

In this Article 78 proceeding, petitioner appealed a determination of the New York State Liquor Authority which imposed a civil penalty for the violation of Alcoholic Beverage Control Law § 65(1) and State Liquor Authority Rule 54.2. In January of 2006, police officers responded to a complaint of underage drinking at petitioner’s premises. Four charges were brought against petitioner: allowing the sale of alcohol to an underage person, failure to exercise adequate supervision over the conduct of the business, permitting the premises to become disorderly, and allowing to premises to become disorderly by permitting an altercation to occur.

A hearing was held and the last two charges were dropped. The first two charges involving the sale of alcohol to minors were upheld because of the testimony of Officer Chowdhury. Officer Chowdhury testified that when he arrived at the premises he noticed a lot of individuals drinking at the bar who he believed to be underage. He pulled aside eight bar patrons to further question them. According to Officer Chowdhury, two of these individuals showed him identification indicating they were under 21. He sniffed their beverages and determined by smell that they contained alcohol. The other six individuals did not have identification and the Officer told them to leave because he believed them to be underage. Officer Chowdhury then issued six summonses to the bartender.

The ALJ determined that while there was no evidence to substantiate charges 3 and 4, they felt Officer Chowdhury’s testimony was credible and imposed a $7,000 civil penalty on petitioner. Petitioner then commenced this Article 78 appeal alleging that the penalty was “arbitrary, capricious, unreasonable, unsupported by substantial evidence, and not based upon a reasonable basis”. Petitioner argued that respondent failed to establish that alcoholic beverages were in fact sold to any individuals under 21. The Court agrees with petitioner. The burden of proof rests upon the State Liquor Authority (SLA) to prove the age of an alleged minor at the time of the violation. Since Officer Chowdhury did not make copies of the minor’s identifications there is nothing in the record to corroborate the dates of birth scribbled on the summonses. Also, there is inadequate proof that the beverages possessed by the eight individuals contained alcohol. Officer Chowdhury did not taste or field test any of the drinks. Additionally, Officer Chowdhury did not see any underage individuals being served by any bartender on the premises.

Accordingly, the Supreme Court granted the petition and annulled the determination, without costs.

To read about Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Police officer denied Accidental Disability Retirement Benefits for on the job injury

Matter of Paul A. Stymiloski v. Thomas DiNapoli, as Comptroller of the State of New York

This Article 78 proceeding was commenced to review a determination of respondent denying petitioner’s application for accidental disability retirement benefits. Petitioner, Paul Stymiloski, was a police officer in the Village of Ossining. In December of 2005, he was engaged in a routine patrol when he noticed a vehicle parked by a 24-hour pharmacy was on fire. He radioed for assistance and then, with the help of the car’s owner, pushed the car away from the store’s entrance to minimize the risk of the fire spreading. After the fire personnel arrived, petitioner and two fire fighters pushed the car even further away. In the process of doing this, petitioner slipped and fell on ice that formed from water the fire department had sprayed to put out the fire. Petitioner sustained a shoulder injury and filed for accidental disability and performance of duty retirement benefits. He was awarded the performance of duty benefits but denied the accidental disability retirement benefits. He then requested a redetermination but the Hearing Officer upheld the decision prompting this Article 78 appeal.

The Supreme Court agreed with the Hearing Officer’s determination. Since petitioner sustained his injury while performing “ordinary employment duties” as a result of “an unexpected or foreseeable event” it would not merit an award of benefits based on the accidental disability provision.

Accordingly, the Supreme Court confirmed the determination, without costs, and dismissed the petition.

To read about Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

School district directed to defend and idemnify teacher

 

Matter of James Cotter v Board of Education of Garden City Union Free School District Board of Education

Back in 2008, I wrote about a Nassau County Supreme Court Decision (J. Feinman) which held that the Garden City School District did not have to defend or indemnify a teacher involved in a fight with another teacher while they were grading Regent’s exams. (You can read that post here.)

The Second Department reversed the prior determination and ordered the school district to defend the teacher who was the target of a civil suit.

This Article 78 case was brought about to review the determination of respondent denying petitioner’s request to defend and indemnify himself in an action pending in Supreme Court. The Supreme Court originally denied the petition and dismissed the motion which resulted in this Article 78 appeal.

Petitioner was involved in a physical altercation with a fellow teacher while grading Regents examinations in the school library. Petitioner was in charge of a group of teachers and directed his co-worker, Philip McCarthy, to sit down and continue grading papers. McCarthy then threw water at petitioner and petitioner proceeded to place him in a head-lock. After this incident, McCarthy filed a civil action against petitioner to recover damages for the assault and respondent refused to defend and indemnify the petitioner.

The Court feels that it was unreasonable for the respondent to deny petitioner’s request due to the circumstances of the altercation. The incident occurred on school grounds while the petitioner and McCarthy were on duty grading exams and therefore could not be considered “wholly personal”.

Accordingly, the Supreme Court reversed the judgment, granted the petition, annulled the determination and directed respondent to defend and indemnity petitioner in the subject action.

Read full article here.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.


 

Petition dismissed due to failure to exhaust administrative remedies

 

Matter of Ethan Mirenberg v Lynbrook Union Free School District Board of Education

In this Article 78 case, petitioner appealed to the Supreme Court to review a determination of the Lynbrook Union Free School District Board of Education which affirmed a determination of the Lynbrook School Superintendent accepting the recommendation of a hearing officer finding petitioner guilty of disciplinary charges. Petitioner filed an appeal with the Supreme Court which was denied on the ground that he failed to exhaust his administrative remedies prior to pursing action in the Supreme Court.

The petitioner did appeal the Board of Education’s decision to the Commissioner of the New York State Education Department but that appeal was not yet resolved when he filed his appeal in Supreme Court and thus he failed to exhaust an available administrative remedy. Additionally petitioner failed to establish that there was an applicable exception to the administrative remedies doctrine.

Accordingly, the Supreme Court dismissed the proceeding without prejudice and affirmed the judgment denying the petition.

To read about more Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

 

The ongoing debate about residency requirements for city workers

This week, Lisa Colangelo, writes about the ongoing controversy concerning residency requirements for city employees. Many city workers are no longer required to live within the five boroughs of New York City. All uniformed workers – police officers, firefighters, correction officers and sanitation officers – are allowed to live in the surrounding counties and north in New York State. The city’s largest union, District Council 37, recently won the right to live outside of city limits. Now several other unions, including Teamsters Local 237 and Communication Workers of America Local 1180, are pushing to get residency requirements lifted by ways of a bill, Intro. 992. Some individuals feel that residency requirements should be eliminated all together for the sake of fairness but this suggestion does not sit well with the city.

Read full article here.

To read about Article 78 cases go to http://www.sheerinlaw.com/?id=78.

For other interesting information in the personal injury file go to www.negligenceatty.com.

CBA requires exhaustion of administrative remedies prior to filing Article 78 petition

Contract grievance procedures must be exhausted before a grievance is ripe for consideration by the courts

Contract grievance procedures must be exhausted before a grievance is ripe for consideration by the courts
Matter of Julicher v Town of Tonawanda, 2009 NY Slip Op 03273, Decided on April 24, 2009, Appellate Division, Fourth Department

Dismissed from his position, Joseph J. Julicher filed a grievance in accordance with the grievance and arbitration procedure set out in the relevant the collective bargaining agreement between the Tonawanda and Julicher’s union. Before completing the grievance and arbitration procedure in which he challenged his termination by the Town, Julicher filed a petition pursuant to CPLR Article 78 in an effort to obtain a court order annulling his dismissal.

The Appellate Division said that Supreme Court’s granting Julicher’s petition was incorrect and unanimously reversed the lower court’s ruling and dismissed Julicher’s lawsuit.

The Appellate Division said that "[W]here[, as here], a collective bargaining agreement requires that a particular dispute be resolved pursuant to a grievance procedure, an employee's failure to grieve will constitute a failure to exhaust [administrative remedies], thereby precluding relief under CPLR Article 78."

Although Julicher commenced the grievance and arbitration procedure pursuant to the collective bargaining agreement, he failed to complete the procedure before commencing legal action and thus he failed to exhaust his administrative remedies.

N.B. In this instance, the grievant filed the petition seeking judicial relief pursuant to Article 78 of the CPLR. Presumably any challenge to an arbitrator’s determination, had the grievant not discontinued his or her participation in the grievance procedure, would have been brought pursuant to Article 75 of the CPLR.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03273.htm

Bill to eliminate residency requirements for city workers introduced

Recently, Lisa Colangelo of the Daily News wrote about a bill that would lift residency requirements for all city workers. At this point more city workers are exempt from residency requirements than are covered by them. Police officers, fire fighters, and other uniformed city workers are allowed to live in surrounding counties such as Nassau and Suffolk and city teachers can live almost anywhere. The purpose of this bill, introduced at last week’s City Council meeting, is to promote fairness among all the city workers since it doesn’t seem fair to allow some employees to live outside the city while not others.

Read full article here.

For other interesting information in the personal injury file go to www.negligenceatty.com.

Article 78 termination appeal granted for NYC teacher

Matter of Norgrove v. Board of Education of the City School District of NYC

This Article 78 proceeding was brought about by petitioner, a tenured mathematics teacher of 28 years, to annul determination of respondents, Board of Education of the City School District of New York, terminating his employment. Petitioner is also seeking retroactive reinstatement with full back salary.

In December 2006, the Board of Education advised petitioner via hand-delivered letters that a serious allegation was made against him and that he was reassigned to Region 8 Human Resources. In May 2007, petitioner received another hand-delivered letter entitled “Notice of Charges” (“First Notice”) informing him of the nature of the complaint being filed against him. The Board of Education also sent this letter via certified and regular mail addressed to petitioner. According to petitioner, the address respondents used was old and he moved in 2003. Later that month the Board of Education mailed petitioner a Second Notice at the address they had on file. In the Second Notice respondents advised petitioner that he had 10 days to request a hearing. Petitioner asserts that he never received this notice since it was not sent to his correct address and therefore he was unable to submit a timely request for hearing.

In October 2007, the Chairperson of the Panel for Education Policy wrote a letter to petitioner detailing the events occurring since the charges in May, the Panel’s findings and indicating petitioners’ termination. Petitioner was then hand-delivered a letter stating he had been terminated. Petitioner immediately informed his union representative who contacted the Board of Education to request a hearing but the request was denied. Petitioner then filed a Notice of Claim in January 2008 and commenced the instant Article 78 proceeding in February 2008.

Petitioner argues that since he did not receive the notice regarding his right to a hearing, the Board of Education’s termination of his employment without the due process hearing deprived him of property rights in his tenured position and was arbitrary, capricious, an abuse of discretion, a violation of lawful procedure, and a violation of his rights. The Court agrees because the Board of Education had an obligation to take additional steps to effect notice after the certified mail to petitioner was returned unclaimed.

Accordingly, the Supreme Court granted the petition, annulled respondents’ determination terminating petitioner’s employment, and ordered respondents to reinstate petitioner with full salary and benefits retroactive to November 26, 2007.

Read full article here.

Appeal challenging teacher's termination dismissed

Petitioner, Carol Nolett, brought about this appeal to challenge her termination by the Board of Education of the Greater Johnstown City School District. Petitioner has been a teacher in this district since 1990 when she received a probationary appointment in the tenure area of remedial reading. Ms. Nolett gained tenure in 1993 in the tenure area of remedial reading and has been teaching “Remedial Reading – Academic Intervention Services” (AIS) since 2000.

During the 2007-2008 school year, petitioner and three other teachers taught AIS. According to petitioner, she had the most seniority of the four teachers in the “tenure area” and alleged that one teacher had taught AIS for only five and a half years while the other taught for only three.

In June of 2008, the board voted to abolish one position in the tenure area of remedial reading and selected petitioner as having the least seniority among the teachers in that tenure area. Petitioner argues that the board incorrectly calculated her seniority and that she has more seniority than the other two teachers. She appealed this decision, requesting to be reinstated as a full-time tenured teacher in the tenure area of remedial reading.

According to respondents, there is no such tenure area in AIS and that petitioner only taught reading within that program. Additionally, respondents assert that petitioner failed to name and serve the other teachers who she claims to have seniority over. The Court agrees that the appeal must be dismissed for failure to join the necessary parties whose rights would be adversely affected by a determination in favor of petitioner.

Read full article here.

Parking tickets bring in revenue at the cost of citizens

Councilman Vincent Gentile feels that city traffic agents are unfairly ticketing Bay Ridge drivers in order to generate revenue. In this fiscal crisis, the increase in the budget is in traffic enforcement personnel. There have been multiple instances of ticketing excess recently. In one case, an individual playing Santa Claus was ticketed while on his horse-drawn carriage meeting with children. Other examples include the ticketing of a Good Samaritan who stopped to rescue an injured woman and a senior citizen at a dialysis center who parked to pick up his wheelchair bound wife.

Gentile has information sheets with steps for getting fines reduced as well as a list of violations eligible for fine reductions. To obtain these documents you can stop by his office at 8703 Third Avenue or call (718) 748-5200.

Read full article here.

Former cops suffer due to now illegal hair testing

At least four former NYPD officers are currently suing the Department over their termination after receiving false positives from hair drug testing. One of these individuals is Roxann Hayes, a former NYPD Detective who tested positive for cocaine in a hair drug test. NYPD’s zero-tolerance drug policy resulted in Ms. Hayes losing her job and pension. According to her lawyer, Ms. Hayes’ sample was subject to cross-contamination and this error has caused her not only her job but also the ability to find a new employment.

In August 2005, the NYPD changed its drug-testing method to using hair samples without first obtaining the unions’ consent. This led to a hearing at the Board of Collective Bargaining in 2006 and eventually was heard in Supreme Court December 2007. The end result was that the NYPD must bargain with the police unions before implementing changes in drug-testing procedures.

Unfortunately, even after the ruling, former police officers who were affected by the new, now invalid, hair testing are still out their jobs. Some are suing for reinstatement.

Read full article here. (Subscription Required)

Terminated employee's allegations of discrimination considered

Ambrosino v Village of Bronxville

In 2007, the plaintiff, Joseph Ambrosino, was terminated from his job with the Village of Bronxville Department of Public Works (DPW). Plaintiff’s Union then filed a grievance which was denied by the DPW Superintendent, the first step of the grievance process, and then denied by the Village Administrator, the second step. The plaintiff then skipped the third and final step of advisory arbitration and went straight to commencing an instant action against the Village and the DPW Superintendent alleging discrimination and breach of contract. The Supreme Court dismissed his petition on the grounds that he did not exhaust his administrative remedies.

Plaintiff then commenced this appeal. The Court found that the original dismissal of the petition on the grounds of failure to exhaust administrative remedies was only partly acceptable. While plaintiff did fail to complete the entire grievance process he was not given the opportunity to plead his case concerning the allegations of discrimination. Therefore the second cause of action was properly dismissed but the first cause of action should not have automatically been denied due sua sponte.

Accordingly, the Court modified the order by deleting the provision, sua sponte, dismissing the first cause of action and affirmed the order as modified without costs or disbursements.

Read article here.

Judge continues stay of West Albany Rod & Gun Club appeal

A Supreme Court Justice decided to extend a temporary restraining order barring Colonie’s personnel chief, Michael Foley, from considering the appeals of two demoted highway supervisors for another ten days. The stay was first issued in December 2008 after the town sough to freeze the process arguing that the supervisors had already appealed their demotions and that Foley had a conflict of interest.

The Town Board demoted these two men in December 2008 and they subsequently appealed to Foley and commenced a lawsuit on the town in Supreme Court alleging that the public works commissioner and not the Town Board had the authority to discipline them. Originally, the supervisors received suspensions without pay for two months which the town then changed to demotions with pay cuts.

The judge wants to prevent Foley from taking any action regarding the appeals until after he has a chance to hear arguments on both the pending lawsuits.

Read article here.

Claim against school district dismissed due to untimely filing

Boakye-Yiadom v Roosevelt Union Free School District

Plaintiff brought about an action to recover damages for breach of contract, promissory estoppel, and defamation. The Supreme Court denied granted defendants’ motion to dismiss the complaint and plaintiff commenced this appeal.

Education Law requires that any complaint against the school district or board of education must be presented to the governing body of said district or school within three months after the accrual of the claim. Therefore, a claim against a school district on an action alleging breach of contract or promissory estoppel based on a contract must be served in a timely manner and since plaintiff failed to serve the notice of claim within three months, the Court properly dismissed the claim.

Accordingly, the Court affirmed the order, with costs.

Read full article here.

Arbitration decision regarding BTA FMLA leave upheld

Matter of Bridge & Tunnel Officers Benevolent Association v Triborough Bridge & Tunnel Authority

In January 2005, the Bridge and Tunnel Officers Benevolent Association changed its policy and required employees to substitute paid annual leave for FMLA leave. Prior to this, petitioner allowed employees to choice whether to take FMLA leave paid or unpaid. The Triborough Bridge and Tunnel Authority then filed a grievance arguing that the new requirement violated its members’ rights under the collective bargaining agreement.

The grievance went to arbitration where the arbitrator sustained the grievance but left it to both parties to come up with a compromise that would take into account the needs of both, and retained his jurisdiction to provide a solution if they failed at doing so. In May 2006, the arbitrator directed that respondent could require an employee to charge up to 25% of his accrued annual vacation leave for FMLA leave purposes before giving him the option of taking unpaid FMLA leave. This decision was then appealed and modified in Supreme Court which then led to this review.

The Court impermissibly substituted its judgment and interpretation of the collective bargaining agreement by modifying the arbitrator’s May 2006 determination. The arbitrator’s decision was not irrational and thus should not have been modified.

Accordingly, the Court reversed the decision modifying the May 2006 arbitration award without costs, denied the petition, and dismissed the proceeding.

Read the full article here.

Arbitration decision upheld regarding Transit Authority employee's termination

Matter of Transport Workers Union, Local 100 v New York City Transit Authority

An Article 75 appeal was brought about to vacate an arbitration award. The New York City Transit Authority then appeals from an order of the Supreme Court granting the petition and directing the reinstatement of Edward Miller to the position of track specialist with back pay and lost benefits.

Since there is a policy supporting arbitration and discouraging judicial interference with either the process or its outcome in this State, an arbitration award should not be vacated unless it violates a strong public policy, is irrational, or clearly exceeds the limitations of an arbitrator’s power. In this case, the arbitrator did not exceed her power nor was the award irrational. The award was consistent with the evidence provided, the federal regulations governing drug testing for transit employees, and the collective bargaining agreement between the parties.

Accordingly, the Court reversed the order, with costs, denied the petition to vacate the arbitration award, and dismissed the proceeding.

Matter of Transport Workers Union Local 100, v New York City Tr. Auth. (2008 NY Slip Op 09807)

Student's accusations of discrimination and conspiracy are unfounded

Matter of Momot v Rensselaer County, Hudson Valley Community College

Petitioner, John Momot, commenced this appeal to review a determination by the Supreme Court dismissing his petition finding no probably cause to support claim of unlawful discriminatory practice relating to education.

Petitioner was a student at Hudson Valley Community College. He filed a complaint with the State Division of Human Rights alleging that Hudson Valley discriminated against him by engaging in a conspiracy with various government agencies to use young female students to tempt him, distort his reputation, and dismiss him from the college. The Division determined that petitioner’s allegations were unfounded and absurd. Petitioner then commenced a proceeding to challenge the determination. The Supreme Court dismissed the petition and this appeal ensued. The Court did not find the determination to be arbitrary and capricious and found no evidence to support petitioner’s accusations.

Accordingly, the Court affirmed the decision.

Action to recover damages for age discrimination by Southold Police Department denied

Tardif v Town of Southold

Plaintiff, John Tardif, brought about an action to recover damages for age discrimination in this appeal of the Supreme Court decision granting defendants’ motion for summary judgment dismissing the complaint. Plaintiff alleged that the Town of Southold and the Town’s police department did not appoint him as a police officer due to discrimination on the basis of his age. Plaintiff argued that he had “the best qualifications” and “the number one test score” on the police officer examination.

Defendants argued that they did not discriminate against plaintiff due to his age but that the reason they did not hire him was because he submitted deceptive responses in his police officer application. The defendants thus established that they had a legitimate, nondiscriminatory reason for not hiring plaintiff. Plaintiff failed to raise triable issues of fact concerning whether he was deprived of his constitutional right to due process, whether he was entitled to a name-clearing hearing, whether he was deprived of a protected liberty interest, and whether he was denied equal protection.

Accordingly, the Court affirmed the order granting summary judgment dismissing the complaint, with costs.

Appealing a Character Disqualification from the NYPD

 

Frequenlty I get calls in my office inquirying about what would disqualifiy a candidate from the NYPD.  The NYC Department of Citywide Administrative Services (DCAS) is the personnel office  for New York City and they make the rules for applicants for NYC positions.  On the DCAS website they list the following list concerning factors that may disqualify a candidate from the NYPD:

The following are factors which would ordinarily be cause for disqualification:

  • Conviction of an offense which indicates lack of good moral character or disposition towards violence or disorder, or which is punishable by one or more years imprisonment.

  • Repeated convictions of an offense which indicate disrespect for the law.

  • Discharge from employment as a result of poor behavior or inability to adjust to discipline.

  • *Dishonorable discharge from the United States Military.

  • Conviction of an offense for Domestic Violence Misdemeanors.

  • *A Felony conviction.

  • Statutory Disqualification (disqualified by law)

A candidate that receives a disqualification from the NYPD other law enforcement or civil service positions can contact my office to see if an appeal would be appropriate:

Toll-Free (888) 998-9984
Law Office of Kevin P. Sheerin
323 Willis Ave, Suite 1
Mineola, New York 11501

Veteran allowed to apply to NYPD despite felony record

Yesterday, Osvaldo Hernandez was granted relief from civil disabilities putting him one step closer to his goal of becoming a New York City police officer. Hernandez served a 15-month combat tour as a U.S. Army paratrooper in Afghanistan and wants to continue serving the community by joining the NYPD. Unfortunately, Hernandez has a felony record. At the age of 20, he was charged with gun possession and spent eight months in jail. Convicted felons cannot carry weapons in New York State which would prevent Hernandez from working as a police officer. With his certificate from the Board of Parole, Hernandez can now be armed and apply for the NYPD. The final decision as to whether or not Hernandez is hired is now in the hands of Police Commissioner Ray Kelly.

Read full article here.

Article 75 petition to vacate arbitration in favor of PBA denied

Matter of Town of Wallkill Police Benevolent Association

This Article 75 proceeding was brought about to vacate an arbitration decision that the Town of Wallkill violated the collective bargaining agreement. The issue at hand was whether the Town of Wallkill violated the collective bargaining agreement between it and the Town of Wallkill Police Benevolent Association (PBA) by placing a Town police officer on modified duty and not permitting him to serve overtime following an incident in December 2003. The arbitrator found that the collective bargaining agreement was violated and ordered the police officer be returned to full duty and be compensated for the overtime he was denied. The Supreme Court agreed that vacating the arbitration award would not be warranted since it was not irrational nor did it violate a strong public policy.

Accordingly, the Court ordered the judgment affirmed, with costs.

Police cadet class dropped in an effort to cut costs

Mayor Michael Bloomberg has decided to cancel January’s class of police officers in an effort to bridge billion-dollar deficits. This decision will affect more than 1,000 cadets. The next class will begin in July. This is only one of several extreme measures that Mayor Bloomberg is putting into effect to guide New York City through the economic slowdown that is only just beginning. New Yorkers can expect the city work force to shrink by 3,000 employees – 500 through layoffs and the rest through attrition with 475 job cuts in the education department. Other budget cuts include the firefighter training academy reducing its program time and the Department of Health closing its dental health clinics that serve poor children.

 

Read full article here.

OATH judge dismisses charges against Environmental Police Officers

DEP v. Nuccio and Williamson  OATH Index #s 2360/08 &2361/08 (9/26/08)

Response to 911 call without supervisory approval was proper. 

Nuccio and Williamson were experienced officers who patrolled watershed areas in upstate New York. In May of 2007 the DEP issued an interim order directing officers not to respond to 911 calls without supervisory approval.  This directive was to avoid DEP officers responding to routine calls in local jurisdictions. In Ulster County a 911 call generates a 911 "poll" seeking response from local law enforcement.  When a 911 "poll" is transmitted the DEP supervisor would authorize a DEP response.  

On 10/2/07 when Nuccio and Williamson were patrolling near the Ashokan Reservoir Ulster County received a 911 call for a domestic violence complaint across from the Reservoir.  Respondent's were 2 to 3 miles away at the time of the call.  No units responded to the first poll and it was retransmitted. Thereafter, respondents picked up the call.  They called their base and asked the officer assigned to desk duty to get the supervisors approval.  Sergeant Wood called the base and denied the officer request to handle the domestic violence 911 call. Inspector Milazzo overturned the Sergeant's disapproval after learning that the officers had already comitted to pick up the job to the 911 operator.

ALJ Kevin Casey analyzed the "obey now, grieve later" principal as it applied to the respondents action.  Common sense dicates that the "obey now, grieve later" concept does not apply and common sense dictates that orders do not apply when adherence would pose a threat to health and safety of employees or others. Officers must show that an imminent threat justifies disobedience of an order.  eg.  officer with allergies, asthma, heart disease justified not reporting to site near Ground Zero;  failure to inspect justified not operating vehicle.  HRA v. Dottin OATH Index 1260/02 and DOS v. Jones OATH Index 2186/99 respectively. 

Judge Casey ruled that the respondents proved that the health and safety exception applied and dismissed the charges against the officers.

Decision to allow NYPD drug screening by hair analysis instead of urinalysis reversed

City of New York v. Patrolman’s Benevolent Association of the City of New York Inc.

This appeal was brought about to review the decision of the Supreme Court granting a petition and annulling the determination of respondent New York City Board of Collective Bargaining finding that petitioners violated the collective bargaining agreement with respondent unions. Petitioners argue that changing the method of random drug testing from urinalysis to hair analysis by NYPD should be exempt from collective bargaining because it involves the disciplinary authority of the Police Commissioner.

 

In August 2005, the NYPD stopped using urinalysis as its preferred method of random drug screening and switched to radioimmunoassay of hair (RIAH) without consulting with the unions. The unions protested by filing an improper practice petition with the New York City Office of Collective Bargaining (OCB). The OCB granted the unions’ petition, finding that NYPD violated NYC Collective Bargaining Law §12-306(a)(4) by “unilaterally changing drug testing procedures, a mandatory subject of bargaining.”

 

The NYPD then brought about an instant Article 78 proceeding to annul this decision as arbitrary and capricious. The Supreme Court granted the petition holding that it was arbitrary and capricious for the OCB to rule that the choice of testing was not related to the Police Commissioner’s disciplinary authority. The Court felt that forcing the Commissioner to negotiate with the police officers that would be subjected to the testing would make his authority appear meaningless.

 

In this review of the first ruling of the Supreme Court, the Court felt petitioners were seeking to avoid their obligation of collective bargaining by extending the Commissioner’s investigatory authority beyond the context of formal disciplinary proceedings to which it is confined. The reason the limitation of authority exists is to create a balance between the concerns of public employees and the disciplinary authority of the Commissioner.

 

Accordingly, the Court reversed the decision, denied the petition and reinstated the determination of the Board of Collective Bargaining.

 

OATH decision to demote respondent for incompetence

Transit Authority v. Wong

This Article 75 disciplinary proceeding was brought about by Petitioner, NYC Transit Authority, against Respondent, Sze Tung Wong, alleging incompetence and misconduct and seeking termination. Respondent was accused of being unable to complete tasks appropriate to his position and title of Computer Specialist II, being uncooperative and unwilling to complete assignments in a timely manner.

 

Respondent’s incompetence charges include being unable to retrieve files from a shared library, failing at completing basic Oracle-related assignments, and not completing an analysis of data error log. He was also accused of misconduct for refusing to participate in a scheduled roll-out, purposefully delaying a work assignment, and being uncooperative and confrontational during the roll-out of a new program.

 

After reviewing all of the evidence and testimonies, the OATH judge dismissed the misconduct charges but agreed with the allegations of incompetence. She felt that Respondent clearly was not able to perform certain aspects of his job without intensive instruction and supervision. In light of his lengthy tenure with the City, the judge felt that termination was too harsh of a punishment. Instead, she recommended demotion as a more fitting penalty that would give Respondent another chance to prove himself in a less demanding position.

 

Accordingly, the Judge ordered Respondent demoted from his position of Computer Specialist II to a position better suited to his skills and knowledge.

Article 75 appeal to challenge decision and suspension granted

Matter of Smith v. New York City Department of Education

This Article 75 case was brought about by Petitioner, Theodore Smith, to challenge the decision and penalty, a one-year suspension without pay. Petitioner was a tenured New York City physical education teacher who had multiple allegations of misconduct, insubordination, incompetence and dereliction. The Arbitrator trying the case found Petitioner guilty of most of the specifications.

 

Mr. Smith challenged this decision, arguing that virtually every aspect of the disciplinary process violated his due process right to a fair and unpartial hearing. Specifically, the performance of the second Arbitrator, Edelman, who made his decision based solely on the transcript of the proceedings before the first Arbitrator. The first Arbitrator recused himself of the case due to an alleged death threat made by Mr. Smith. This information was then passed along to the second Arbitrator. Arbitrator Edelman did not grant Smith a hearing de novo and based his findings on considerations of credibility without seeing and hearing the witness.

 

Accordingly, the Supreme Court granted the petition, vacated the decision by Arbitrator Edelman, and remanded the matter for a new hearing.

Article 78 appeal to review determination terminating temporary employment dismissed

Stephen Russell v New York Citywide Administrative Services

This Article 78 case was brought about by Petitioner, Stephen Russel to challenge his termination and to review a determination of the New York City Transit Authority dated April 13, 1989. The New York City Department of Citywide Administrative Services (DCAS) terminated petitioner’s temporary employment as a bridge and tunnel officer because he omitted information concerning a prior misdemeanor on his employment application. The Supreme Court found that DCAS’ decision to terminate the petitioner was not arbitrary and capricious, had a rational basis, and was not made in bad faith. Also, the statute of limitations bars this appeal from being granted.

 

Accordingly, the Supreme Court ordered the judgment affirmed.

Article 78 petition against Metropolitan College of New York dismissed

Veronica Rosario v. Metropolitan College of New York

Petitioner, Veronica Rosario, filed a verified complaint charging her former employer, the Metropolitan College of New York, with discrimination on the basis of her disability. She claimed that the College terminated her employment after discovering that she suffered from bi-polar disorder.

 

Petitioner voluntarily resigned her position at the College via e-mail during an alleged manic state. The rationale for the Division’s determination was that petitioner did not request special accommodation in connection with her bi-polar condition before, during, or after her hospitalization. Petitioner argued that a reversal of the Division’s decision was warranted due to triable issues of fact.

 

The Court felt that the Division’s investigation was adequate and permitted petitioner adequate opportunity to present her contentions and it was within the administrative body’s discretion to decide the method(s) to be employed in investigating a claim. There was no evidence that the investigation was abbreviated or one-sided and no basis to annul the determination as arbitrary and capricious.

 

Accordingly, the Court dismissed petitioner’s Article 78 application and upheld respondent’s “No Probably Cause” Determination as not arbitrary or capricious and having a rational basis.

Defendant awarded severance pay following wrongful termination

National Medical Health Card Systems Inc. v. Fallarino

This action was commenced by Plaintiff, National Medical Health Card, Inc. (NMHC), against its former employee, Defendant, Joseph Fallarino. Fallarino then counterclaimed seeking money damages for breach of contract by wrongful termination.

 

When Fallarino applied to the job at NMHC, he falsified information on his resume. In the process of the interview process, no one at NMHC ever did a thorough enough background check to discover the inaccuracies in Fallarino’s resume. He was hired in June of 2004. Early 2005, two women that worked under Fallarino accused him of sexual harassment. In March, NMHC fired Fallarino due to allegations of sexual harassment. Upon his termination, the company offered Fallarino an ultimatum, he could receive one-half of the severance previously agreed upon or he would be fired for cause and lose his benefits, get a bad reference, and receive no unemployment.

 

Following his termination, NMHC discovered the omissions and misstatements in Fallarino’s resume. They then brought about this action against Fallarino claiming fraud and therefore a breach of contract which meant they would not owe him any severance pay. The Court felt that NMHC could have discovered the false information on Defendant’s resume prior to hiring him since they were, in fact, able to confirm the inaccuracies after his termination. Also the company did not suffer any damages due to Fallarino’s alleged fraud.

 

In regards to Fallarino’s counterclaim, his termination was wrongful because the two reasons given for his termination were inadequate. The first reason, the misstatements in his resume, could not serve as a basis for his termination because NMHC had adequate opportunity to investigate Fallarino’s background but chose not to and did not do this research until after firing him. Also, the alleged sexual harassment charges could not serve as a basis for his termination because the instances were isolated and uncorroborated and did not legally rise to the level of actionable sexual harassment warranting the rapidity of the firing. The evidence did not demonstrate a concrete basis under the contract to fire Fallarino.

 

Accordingly, the Court ordered that Fallarino is entitled to the salary benefits, and car allowance, together with interest from the date of his termination as well as other benefits under his contract.

Employees treated as "Classified Service"

Commissioner distinguishes between positions in the Unclassified Service and the Classified Service in determining an employee’s tenure status

 

Commissioner of Education distinguishes between positions in the Unclassified Service and the Classified Service in determining an employee’s tenure status
Appeal of Kristine deVente and Jocelyne Jesenof from action of the Broome-Delaware-Tioga Board of Cooperative Education Services, Jennifer Mondolfi and Mary Jo Rankin, regarding termination of employment, Decisions of the Commissioner of Education, Decision No. 15,822, decided August 14, 2008

This decision by the Commissioner of Education illustrates the fact that some “professional positions” established by a school district or a BOCES are not in the unclassified service as defined in Section 35 of the Civil Service Law and are thus subject to the jurisdiction of the responsible civil service commission for the school district or BOCES.

The Broome-Delaware-Tioga Board of Cooperative Educational Services (BOCES) hired Kristine deVente in 1997 as a part-time “Professional Development Specialist.” The duties of her position involved training teachers, administering a number of BOCES programs and occasional teaching. Effective July 1, 1999, deVente’s position became full-time, and ultimately BOCES granted deVente “tenure” effective August 7, 2002.

On September 16, 1998, the BOCES appointed Jocelyne Jesenof (“Jesenof”) to the position of “Professional Development Specialist” for a three-year probationary period in the tenure area of elementary education. Her duties of her position involved providing multi-cultural educational services and some classroom instruction and she was granted “tenure” effective September 15, 2001.

In 2003 deVente’s position was made part-time (.5) and Jesenof’s position was abolished.

In this appeal to the Commissioner of Education both deVente and Jesenof claim that they have greater seniority in the elementary education tenure area than two other BOCES teachers, Mondolfi and Rankin. They ask that the Commissioner direct the BOCES “to reinstate them to full-time positions in the elementary education tenure area, nunc pro tunc, as of September 1, 2003, along with benefits incident to such reinstatement.”

Although BOCES attempted to have the Commissioner dismiss the appeals filed by deVente and Jesenof as untimely, the Commissioner excused their failure to commence this appeal within 30 days because their delay was due to an attempt to litigate this dispute in court.

This, however, proved to be an illusory victory for both deVente and Jesenof as the Commissioner ruled that neither of them established that they were employed as professional educators within the meaning of Part 30 of the Rules of the Board of Regents. In §30.1(e) of the Rules, a professional educator is defined as:

[A]n individual appointed or to be appointed to a full-time position on the professional staff of a school district or board of cooperative educational services, which position has been certified as educational in nature by the commissioner to the State Civil Service Commission pursuant to the provisions of 35-g of the Civil Service Law and in which position tenure may be acquired in accordance with the provisions of the Education Law.

Both deVente and Jesenof conceded that BOCES had appointed them to positions of Professional Development Specialist. The position of Professional Development Specialist, however, is not among the positions certified by the Commissioner of Education to the New York State Civil Service Commission pursuant to Civil Service Law §35(g) as being in the teaching or supervisory staff of a school district. Since petitioners were not employed as professional educators as that term is defined in Part 30 of the Commissioner’s regulations, the protections of that Part do not apply to their employment.

Further, the Commissioner found that neither deVente nor Jesenof established that the work that they performed was in the tenure area of elementary education. Part 30 of the Rules of the Board of Regents establishes the various subject tenure areas that must be used for teachers hired after August 1, 1975. In regard to the tenure area of elementary education, §30.5 of the Rules of the Board of Regents provides:

A professional educator who is employed to devote a substantial portion of his time to classroom instruction in the common branch subjects at the kindergarten (including pre-kindergarten) level and/or in any of the first six grades shall be deemed to serve in the elementary tenure area.

Section 30.1(g) of the Rules defines “substantial portion of his time” as:

40 percent or more of the total time spent by a professional educator in the performance of his duties, exclusive of time spent in preparation, monitoring or in co-curricular activities.

While both deVente and Jesenof hold permanent certification in elementary education, the Commissioner said that they never devoted at least 40% of their work time to classroom instruction. Rather, the BOCES employed petitioners in its “Center for Education Support and Technology.” As such, deVente and Jesenof never served in the elementary education tenure area while employed by the BOCES.

Accordingly, said the Commissioner, neither deVente nor Jesenof can now claim that they have more seniority in elementary education than respondents Mondolfi and Rankin.

The Commissioner then commented that “Although I am constrained to dismiss this appeal, I note that when [deVente and Jesenof] commenced their employment with the BOCES, respondent board lacked the authority to offer them tenured positions as Professional Development Specialists. I remind respondent board of the need to follow all pertinent provisions of the Civil Service Law, Education Law §3014 and Part 30 of Rules of the Board of Regents.”

In other words, the positions to which both deVente and Jesenof had been appointed jurisdictionally were in the classified service and therefore subject to position classification by the responsible civil service commission and subject to the relevant provisions of the Civil Service Law with respect to appointment, retention and related attributes of such an employment status in the public service.

The full text of the Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume48/d15822.htm

Originally published in New York Public Personnel Law by Harvey Randall.

Retired schoolteacher's appeal to change health insurance to family plan granted

 

Douglas Bower v Board of Education, Cazenovia Central School District

Petitioner retired from his teaching position in 2004. In 2006, he got married and requested to change his health plan from individual coverage to family coverage so that his wife would be covered. The district refused and said that a retired teacher is not allowed to change his coverage. Petitioner appealed this decision and the Court granted his motion. Respondents then brought about this appeal.

Respondents argued that petitioner was not allowed to change his coverage following retirement. According to the “ENROLLMENT CHANGES” section of the agreement “[y]ou may request a change from individual to [f]amily coverage . . . [t]o provide coverage for a newly acquired spouse.” This section never indicates that the “you” does not include retired employees.

Accordingly, the Supreme Court ordered the judgment affirmed without costs.

Former McDonald's employee files discrimination complaint

Lisa Craib, a 43 year old woman with Asberger’s syndrome, worked at McDonald’s for 21 years. Last March, Craib was told she was “no longer part of the team” and fired. She, along with two other disabled employees, was fired two days after the Shattuck Avenue McDonald’s was sold to Nick Vergis. The previous owner, Mike Maddy, was sympathetic to her disability and contacted California’s Employment Development Department to enlist a job coach to aid Craib with her “performance issues”. Craib filed a discrimination complaint last week under the Americans with Disabilities Act and protested in front of the Downtown Berkeley McDonald’s on Tuesday. If the case is heard in federal court, Craib could be eligible for compensatory damages. 

Read entire article here.

Alleged disability discrimination case against school district dismissed

Levine v Smithtown Central School District

Defendants brought about a motion for summary judgment to dismiss plaintiff, Melissa Levine’s alleged disability discrimination action. Plaintiff was a school psychologist at the Tacken Elementary School in her final probationary year. After sustaining a concussion while trying to restrain a student, plaintiff was on leave from October through November of 2001. Then plaintiff was absent from work from December 2001 through the end of the school year due to bi-polar disease and Lyme disease. When the time came for Levine’s supervisor to evaluate her, she was not recommended for tenure and instead was recommended for termination. Plaintiff asked for an extension of her probation but was denied.

Plaintiff brought about this appeal and alleged that she was discharged due to her disability. Defendants argued that she was terminated due to poor performance prior to her prolonged absence. Additionally, in order to meet the ADA’s definition disability, a person must have a physical or mental impairment that substantially limits at least one major life activity, must have a record of this impairment, and must be regarded as having the impairment. Plaintiff failed to provide evidence that her impairment substantially limited any major life activity, her sole record of impairment was her doctor’s notes that stated a diagnosis and recommendation for continued sick leave, and her only evidence that she was regarded as impaired was the defendants’ alleged perception that she could not perform her job. In summary, Levine failed to provide sufficient evidence to permit a trier of fact to conclude that she was disabled within the meaning of the ADA.

Accordingly, the Supreme Court granted defendants’ motion for summary judgment and dismissed the plaintiffs’ claim.

Challenges to Civil Service Commission Decisions



Challenging an administrative determination by a civil service commission

Challenging an administrative determination by a civil service commission
Horn v The New York City Civil Service Commission, 43 A.D.3d 760, Appellate Division, First Department

Sharhann Lane, had been terminated from her position with the New York City Department of Corrections. She appealed to the New York City Civil Service Commission, which directed the Department to reinstate her to her former position.

Martin Horn, the Commissioner of the New York City Department of Correction, filed an Article 78 petition seeking to annul the Commission’s determination reinstating Lane to her former position as a correction officer.

Citing Matter of New York City Dept. of Envtl. Protection v New York City Civil Service Commission, 78 NY2d 318, the Appellate Division ruled that the lower court properly dismissed the Commissioner’s petition as a determination by the New York City Civil Service Commission is subject to judicial review only if “the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction”.

The Commissioner of Corrections had argued that the Civil Service Commission’s determination was against public policy and inconsistent with the Commission’s precedents in such matters. Challenges based on an alleged violation of public policy and, or, a failure to follow precedents, said the court, do not fall within the scope of judicial review permitted – i.e., consideration of alleged illegal or unconstitutional actions by the Commission or rulings alleged to be on matters beyond the Commission’s jurisdiction.

Source: Initially published on the Internet inNew York Public Personnel Law. Reproduced with permission. Copyright© 2006, 2007, 2008, Public Employment Law Press.

Article 78 appeal to review suspension of pay and benefits granted

Matter of Thomas Kempkes v Brian Downey

Petitioner, a police officer, brought about this Article 78 appeal to review a determination by the Chief of Police of the Village of Bronxville suspending petitioner without pay pending a disciplinary hearing. Petitioner argued that the Village was obligated to pay his disability benefits pursuant to General Municipal Law § 207-c since benefits conferred under this law constitute a vested property interest.

The issue in this case was whether General Municipal Law § 207-c creates a protected property interest in disability benefits such that a predeprivation hearing must be held. Since the constitutional guarantee of due process requires that a benefit recipient under General Municipal Law § 207-c be granted an evidentiary hearing prior to suspension of said benefits, a municipality may not discontinue the benefit payment without a prior evidentiary hearing.

Accordingly, the Supreme Court annulled the petitioner’s suspension and ordered appellants to restore the disputed benefits to petitioner until an evidentiary hearing is held and a final determination of the disciplinary charges made.

Porter's instant action discrimination case dismissed

McClellan v Majestic Tenants Corporation

Plaintiff began working for Majestic Tenants Corporation as a doorman in 1984 and later became a porter. In 2005, plaintiff was terminated. Plaintiff alleged unjust termination sought reinstatement to his prior position with full back pay, benefits, seniority, and contributions to the benefit funds lost through his union. The arbitrator decided that there was just cause for plaintiff’s termination which led to plaintiff filing an instant action alleging discrimination and harassment based on his race and age.

Defendants assert that plaintiff’s cause of action must be dismissed because collective bargaining agreements between Local 32B-32J and The Realty Advisory Board on Labor Relations Incorporated (RAB) exclusively require that discrimination claims be resolved by arbitration. The Court felt that under current binding precedent, plaintiff’s complaint must be dismissed because his discrimination claims are subject to the mandatory arbitration provisions outlined in the collective bargaining agreement.

Accordingly, the Supreme Court granted motion by defendants for an order dismissing plaintiff’s action.

Less time in rubber room for teachers accused of misconduct

A deal between the teachers union and education officials was made to reduce the amount of time that teachers accused of misconduct will spend idling in “Rubber Rooms”. A recent analysis found that taxpayers spend about $65 million a year paying the salaries of teachers accused of misconduct. In order to expedite the processing of cases against teachers, the Education Department is increasing the number of arbitrators from 20 to 28, with 14 devoted strictly to cases of alleged incompetence. The goal of this new deal is to improve fairness and timeliness.

Read full article here.

Nassau plans to appeal $950,000 awarded to correction officer

Yesterday, Nassau officials made known their plans to appeal a $950,000 award in a federal lawsuit by a correction officer who convinced a jury that she was denied the opportunity to become a police officer due to gender discrimination and harassment.

County Attorney Lorna Goodman said Luca was not retaliated against but that “She simply was unable to satisfactorily explain her expensive homes and cars on a correction officer’s salary.” Thus, she didn’t pass the investigation.

Read the full article here.

Nassau correction officer awarded close to one million dollars

Matter of Patricia Luca v Nassau County

Patricia Luca’s conflicts with Nassau County began in November 2000 when she was subject to sexual harassment at the county jail in East Meadow where she is employed. According to Luca, a fictitious scenario using her name was distributed while she was attending a workshop with colleagues. This scenario humiliated her and made her the butt of lewd comments. Luca filed a lawsuit regarding this incident and received an out-of-court settlement.

Luca claims that her challenging the county resulted in her being prevented from achieving her dream job of becoming a Nassau County police officer. She took the police officer exam in 1994 and was eligible to be hired but her name was passed over until she reached the max age and was no longer eligible. Luca sued Nassau County for a second time charging retaliation by the county.

After seven years in court, Patricia Luca was awarded a total of $949,973.86 in damages and lost pay, legal fees, and other costs.

Read the full article here.

Article 78 termination during extended probationary period dismissed

Smith v. New York City Department of Correction

Defendant, Kenneth Smith, made an appeal to annul his termination from the New York City Department of Corrections. Smith argued that he was terminated without notice or a hearing. The Court stands by the fact that he was a probationary employee at the time of his termination and it is a well known fact that a provisional or probationary employee may be discharged for any or no reason as long as the dismissal was not in bad faith.

The one factor that the Court considered was the fact that Smith’s probationary period had been extended by the number of days he was absent from duty. This extension was the reason Smith was still in probationary status at the time of his termination. Smith argued that he should have been given notice that his probationary period had been extended. The Court ruled that Smith was not entitled to notice because he signed a form acknowledging this and other conditions of his probation.

Accordingly, the Supreme Court dismissed the petition and the Appellate Division affirmed the lower court’s ruling.

Decision to vacate teacher misconduct unanimously reversed

Lackow v Department of Education of City of New York

Supreme Court granted petitioner, Douglas Lackow’s, petition to have certain determinations of teacher misconduct vacated and remanded for imposition of a lesser penalty than termination of employment in January of 2007.

Respondent, Department of Education of the City of New York brought about this appeal seeking reconsideration. A number of complaints were filed against petitioner concerning his use of sexual innuendo in high school classes he taught. Petitioner made multiple inappropriate comments to different students that can be verified by witnesses.

In light of petitioner’s proven misconduct and the fact that he had been warned in writing three times about the inappropriateness of his behavior, the penalty of dismissal does not shock the conscience. The repetitive nature of petitioner’s misconduct is especially alarming. Such conduct is indicative of a continued pattern of offensive behavior that reflects an inability to understand the necessary separation between a teacher and his students.

Accordingly, the Supreme Court ordered the petition to vacate certain determinations of teacher misconduct and remand for imposition of a lesser penalty than termination reversed, the cross motion to dismiss granted, and the petition dismissed.

Supreme Court rules to protect employees who complain about discrimination in the workplace from retaliation

Retaliation cases are a subset of workplace discrimination cases that are growing in number. This is due to the fact that it is often easier for employees to demonstrate that they were retaliated against than that they were victims of discrimination in the first place.

In two major federal statues, Congress has provided explicit protection against retaliation. No such protection exists in the portion of the age-discrimination law that applies to federal government workers. Also lacking is explicit language in a post-Civil War-era statute giving “all persons” the same right “as is enjoyed by white citizens” when dealing with contracts of employment.

The Court interpreted those two statues and adopted a broad interpretation of workers’ rights under two federal civil rights laws ruling that employees are protected from retaliation when they complain about discrimination in the workplace.

Read full article here.

Action to receive "gap time" compensation in cash denied

Parker v. City of New York

Plaintiffs, 327 former and current Juvenile Counselors and Associate Juvenile Counselors employed by New York City’s Department of Juvenile Justice (DJJ) filed this action pursuant to the Pair Labor Standards Act of 1983 (FLSA) against the City of New York and the DJJ, alleging that the City’s compensation policies and practices violate the FLSA.

Plaintiffs argued that pursuant to 29 U.S.C. §207(o) and associated regulations, Defendants must compensate employees in cash and not compensatory time for time worked between 35 and 40 hours in a workweek where employee works over 40 hours; Defendants failed to comply with 29 U.S.C. §207(o)(5) requiring public employers to grant requests for compensatory time off within a reasonable time period; and Defendants violate the FLSA’s prompt payment requirement by paying overtime that is earned in the second week of a biweekly pay period in the paycheck covering the succeeding pay period.

The Plaintiffs’ contention that Section 207(o) mandates cash payment rather than compensatory time payment for gap-time hours falls outside the ambit of the FLSA. Nothing in Section 207(o) required Defendants to compensate gap hours in cash. Plaintiffs’ interpretation of the relevant regulation is untenable

Regarding the claimed failure of Defendants to grant requests for compensatory time off within a reasonable time period, Plaintiffs submitted data that proves only that the employees did not make use of their compensatory time within a reasonable period within their requested date and not that the City failed to make such a date available to them.

Finally, in regards to Plaintiffs’ allegation that DJJ’s overtime payment policies violate prompt payment requirements of FLSA, there is no requirement in the Act that overtime compensation be paid weekly. Plaintiffs provided a variety of arguments but these contentions are nothing just conjecture and do not create triable issues of material fact.

Accordingly, the Supreme Court ordered that the Defendants’ motion for summary judgment is granted and Plaintiffs’ cross motion denied.

Article 78 Decision Reversed and Petitioner Reimbursed Expenses

Timmerman v Board of Education of City School District of City of New York

In February 2007, Supreme Court ruled against Petitioner, Dolph Timmerman, in his Article 78 petition seeking to direct respondents to reimburse petitioner for the expenses he incurred defending himself against criminal charges leveled against him by two of his students.

Respondents contend that petitioner’s criminal proceeding does not fall within the scope of Education Law 3028. Since the record shows that the criminal proceeding against petitioner clearly arose directly from the disciplinary actions he took against pupils, respondents should reimburse petitioner for the attorneys fees and expenses he accrued defending himself.

Accordingly, the Supreme Court ordered that the judgment is reversed, without costs, and the petition granted.

 

Article 78 to reverse employment termination for false application statements denied

Muto v NYS Executive Department Division of Human Rights

Petitioner, Joseph F. Muto, sought to annul decision to terminate his probationary appointment on the grounds of bad faith and arbitrary and capricious action.

 Petitioner was hired by respondent, New York Division of Human Rights, for a probationary period of one year. On his application, Muto wrote that though he had worked as a practicing attorney in New York, he was not admitted to the New York bar. Petitioner said that the reason for this was because he was disbarred for negligent client representation by failing to appear for out-of-state cases due to his fear of flying and heights.

 During his probationary period, the senior staff held a meeting to review plaintiff’s personnel file and determined that he failed to fully disclose the reasons for his disbarment. A total of 43 serious charges were brought against petitioner and he was terminated.

 Muto then brought about this Article 78 proceeding on the ground that his termination was done in bad faith and was arbitrary and capricious. Petitioner’s arguments fail to show that respondent’s determination was in bad faith. Petitioner argued that respondent could have discovered all the details of his disbarment as a matter of public record but this does not mitigate the fact that Muto disclosed certain aspects of his disbarment while hiding others.

 Petitioner did not meet his burden to show a triable issue of fact to support a claim of bad faith, improper motive, arbitrariness or capriciousness.

 Accordingly, the Supreme Court grants the Respondent’s Cross Motion to dismiss this Petition.

BOCES termination penalty too severe; back pay awarded at demontion level salary

Matter of DeStefano v Board of Cooperative Educational Services of Nassau County

Index No. 11638/06

Petitioner brought about this Article 78 proceeding to review a determination by the Board of Cooperative Educational Services of Nassau County (BOCES) demoting her from her position as a Teacher’s Aide to that of a School Monitor awarding her back pay of $25,927.05. January 2004, BOCES found petitioner guilty of misconduct and terminated her employment as punishment. In February 2006, the Court found that the sanction of dismissal was so disproportionate to petitioner’s misconduct as to be shocking to one’s sense of fairness and demanded a less severe punishment. March 2006, BOCES demoted petitioner to the position of School Monitor and awarded her back pay based on a School Monitor’s salary, which was less than a Teacher’s Aide salary.

 Petitioner commenced an instant proceeding to review BOCES’ determination. The Supreme Court dismissed the proceeding. No basis exists for annulling the determination of BOCES to base the back pay on a School Monitor’s salary.

 Accordingly, the Supreme Court ordered that the judgment is affirmed, without costs.

Article 78 appeal of FDNY termination for false statements denied

Matter of Loscuito v Scoppetta

Article 78 proceeding was sought to review a determination of Nicholas Scoppetta, as Fire Commissioner of the City of New York. Petitioner knowingly made false statements to investigators in the course of an investigation. Additionally, petitioner was found guilty of six charges of misconduct. The petitioner’s false statements made under oath related to serious charges implicating the integrity of the FDNY gave good reason for his termination and was not so disproportionate to the offenses to be shocking to one’s sense of fairness.

 Accordingly, the Supreme Court ordered that the determination is confirmed, the petition is denied, and the proceeding dismissed on the merits, with costs.

Article 78 Challenging Reclassification of Civil Service Job Titles

Matter of Criscolo v Vagianelis

The Supreme Court of New York County granted petitioners’ appeal to review a determination of respondent Department of Civil Service reclassifying certain civil service job titles.

 Petitioners challenged the classification standards issued in October 2006 by respondents revising their job titles within the Department of Corrections. This reclassification would add a duty to conduct tier III inmate disciplinary hearings to the following job titles: education supervisor, plant superintendent, and assistant industrial superintendent. Petitioners contended that this reclassification was inappropriate and conflicted with the duties of their civil service titles. Supreme Court rejected these contentions and dismissed the petition resulting in this appeal by petitioners.

 The Division argued that the job titles were in need of updating and that the standardized nature of the tier III hearings combined with procedural safeguards that are in place would allow for hearings to be conducted by non-attorneys. The proposed new standards set forth many changes and among them were requiring the employees to occasionally conduct tier III hearings.

 The Division may not utilize reclassification as a means of validating out-of-title work and this appears to be the case. The Governor’s Office of Employee Relations issued determinations in August 2006 ruling that the duties of conducting tier III disciplinary hearings constituted out-of-title work. The Division was attempting to indirectly do what it is prohibited from doing directly.

 Accordingly, the Supreme Court ordered that the judgment is affirmed, without costs.

Absent agreement or injury at-will employee may be terminated

Barcellos v. Robbins
Index # 2007-05629

The Appellate Division, Second Deparment reversed Judge McMahon's decision denying the dismissal of the complaint which alleged the wrongful discharge of an at-will employee.  Plaintiff failed to plead sufficient facts which made the defendant's acts outside the scope of their employment. New York does not recognize a cause of action for the tort of abusive or wrongful discharge of an at-will employee.  The decision can be found   here:www.courts.state.ny.us/reporter/3dseries/2008/2008_03572.htm

Order to Show Cause to Withdraw Resignation denied

Gilliam v. New York City Department of Sanitation

Index No. 1664/08

Charles Gilliam, Petitioner, moves, by order to show cause, to withdraw his resignation from the New York City Department of Sanitation, Respondents.

 Mr. Gilliam while a uniformed sanitation worker, tested positive for cocaine in June 2007. Accordingly, he was suspended and sent to a rehabilitation center. Prior to returning to work, Mr. Gilliam submitted to a second drug test in August 2007 and again failed. After his two failed drug tests and his attempt at rehabilitation, DSNY gave Mr. Gilliam a third chance in the form of a Last Chance Agreement. The Last Chance Agreement was an offer for Petitioner to accept a plea bargain to resolve all departmental charges against him. By signing this agreement, Petitioner waived any hearing or right to be heard for the purpose of contesting a subsequent positive drug test or refusal to test and have the Department Advocate the right to submit his resignation in the case of a third positive drug test. Mr. Gilliam voluntarily entered into the Last Chance Agreement and was aware that a third positive drug test would result in the termination of his employment.

 In November 2007, Petitioner failed a drug test for the third time. The urine sample, Mr. Gilliam submitted was substituted and found to be not urine. As a result of these laboratory findings, as required by the Last Chance Agreement, Petitioner’s resignation was submitted.

Mr. Gilliam does not dispute the test results but claims that the City and DSNY should have treated him for a line of duty injury due to Post Traumatic Stress Disorder caused by his experiences working during the 9/11. Mr. Gilliam, however, has failed to present the Court with any documentation that he worked at Ground Zero or the Staten Island landfill where Ground Zero debris was transported. While, the Court is sympathetic to Petitioner’s plea for help, they feel he has been given ample opportunity by respondents to solve his drug and alcohol problems.

 Petitioner Gilliam failed to present any evidence that he was coerced to sign the Last Chance Agreement. He voluntarily entered into his Last Chance Agreement in order to dispose of various departmental disciplinary charges resulting from his positive drug tests and substance abuse.

 Accordingly, the Supreme Court denied the petitioner’s order to show cause and granted respondents’ summary judgment and dismissal of the instant petition.

Substantial evidence supports child care license revocation

Alexander v. NYS Office of Children and Family Services
Index # 20906/06

The Appellate Division, Second Department determining this Article 78 Petition held that there was substantial evidence in the hearing record to uphold the determining of the designee of the Commissioner of the New York State Office of Children and Family Services to revoke the Petitioner's licencse.  The penalty of license revocation was neither arbitrary and capricious nor disproportionate to the misconduct.  The decision can be found here www.nycourts.gov/reporter/3dseries/2008/2008_03451.htm

Article 78 petition to annul disqualication denied

Article 78 Motion to Annul Disqualification Denied

Rivers v. New York City Department of Sanitation

Index No. 104210/07

The Supreme Court of New York County granted respondents’ cross motion to dismiss petitioner’s Article 78 proceeding seeking to annul respondents’ determination disqualifying petitioner from consideration for the position of sanitation worker affirmed.

 The court did not convert the cross motion to dismiss the petition for failure to state a cause of action into a motion for summary judgment without notice. Instead, the court found that petitioner was unable to show cause of action that respondents acted arbitrarily, capricious, or without a rational basis. The determination finding petitioner medically not qualified for the position of sanitation worker was rationally based on findings that she suffered from left ventricular hypertrophy and had elevated blood pressure. Respondents relied on conclusions of Department of Sanitation’s medical director, not the conflicting opinions from petitioner’s physicians.

 Accordingly, the Supreme Court denied the petitioner’s appeal and granted respondents’ cross motion to dismiss.

The NYPD Department Advocate's Office "Civilianized"

A recent article in the New York Law Journal reported that the NYPD Department Advocate’s Office is now “civilianized”. The Department Advocate’s Office, which prosecutes officers in courtroom hearing before administrative law judges, is now composed of veteran litigators recruited primarily from the offices of district attorneys and the Legal Aid Society.

 Traditionally, the advocate’s office has been staffed by police officers straight out of law school. In 2005, Commissioner Raymond Kelley hired Julie Schwartz, former chief of the Sex Crimes and Special Victims Bureau at the Brooklyn District Attorney’s office, to alter the public perception of the advocate’s office. Ms. Schwartz’ aim was to “professionalize” the advocate’s office as a legal agency.

 This effort to bring credibility to the department has given way to a plethora of benefits to the parties involved. Officer-lawyers pursuing criminal charges against fellow police officers were commonly referred to as “rats” and most officers did not desire the position of a rat. Now, with the shift to civilian attorneys, more police officers are back out on patrol. A handful of the 25 lawyers under Ms. Schwartz command are uniformed police officers but these individuals do not have caseloads nor do they try cases.

 Positive statistics show prove an “improvement of the quality of service” provided by the civilian lawyers. In the past three years, since Ms. Schwartz’ reform, trials have gone down and negotiations have gone up. This means that the NYPD advocate’s office is being more careful about what they bring to trial. Also, fewer dismissals mean more credibility with the public and fewer cases brought to trial mean less unnecessary anxiety for police officers.

 Read entire article here.

Article 78 Reinstatement as a Taxicab Driver Denied

Mankarios v. New York City Taxi and Limousine Commission

Index No. 107087/06

Petitioner Boutros Mankarios sought to appeal respondent Taxi and Limousine Commission’s denial of petitioner’s application for a taxi driver’s license. The petition was denied and the proceeding dismissed.

 Petitioner was issued a license by New York City Taxi and Limousine Commission to operate a taxicab in 1998. In 2002, petitioner pled guilty to an incident that occurred in his cab involving two 14-year old female passengers and surrendered his TLC license.

Petitioner reapplied for a license in 2005 and was denied. Petitioner commenced this Article 78 proceeding challenging TLC’s decision. Supreme Court granted the petition, annulling the decision and directing TLC to grant the application. TLC responded with an appeal.

 The only issue in question was whether TLC’s denial of petitioner’s application was arbitrary and capricious. TLC made their decision to deny petitioner’s application based on the serious misconduct of petitioner and the fact that only three years had passed since it occurred.

 Since TLC’s determination has a rational basis, the Court denied this Article 78 petition.

Click www.nyc.gov/html/tlc/html/home/home.shtml for the NYC Taxi and Limousine Commission website.

Article 78 Disability Benefits Granted

Schmidt v Putnam County Office of the Sheriff

Index No. 1432/06

Petitioner Jeffrey Schmidt brought this Article 78 proceeding to review the Putnam County Sheriff’s denial of disability benefits. The Supreme Court granted the petition and awarded the petitioner disability benefits.

Petitioner suffered an on-the-job fall on January 31, 2003 causing medial meniscal tears requiring subsequent surgical repair. In order to be eligible for disability benefits, a covered municipal employee must prove direct causal relationship between job duties and the resulting injury. Though the petitioner had a preexisting knee injury, the medical records unequivocally established that the injuries sustained were a result of his on-the-job fall and that these line-of-duty injuries were a direct cause of his disability.

 Accordingly, the Putnam County Sheriff’s denial was not rationally based on evidence presented and thus, the Court dismissed the denial as arbitrary and capricious.

Click www.putnamsheriff.com/ for the Putnam County Sheriff's Office Website

Teacher not entitled to Defense and Indemnification when sued for Intentional Tort

Cotter v. Board of Ed. of the Garden City U.F.S.D., 19661/07
Decided: March 5, 2008


The petitioner initiated this proceeding for a judgment declaring that the respondent has failed to perform a duty upon it by law and engaged in conduct that is in violation of lawful procedure, affected by an error of law, and is arbitrary and capricious, or an abuse of discretion by refusing to save harmless and defend and indemnify the petitioner in a civil action pending in Supreme Court, County of Nassau. The petitioner also sought a judgment that the school district violated a settlement agreement that it would defend and indemnify the petitioner if he were to be sued.

Cotter and McCarthy were in the Garden City High School library grading papers.  When McCarthy wanted to leave the table Cotter protested and the two began a scuffle. McCarthy filed suit versus Cotter and the school district.

Cotter had signed an agreement with the school district that he "may" obtain defense and indemnification from the school district "to the extent permitted by law." McCarthy alleged injuries to his neck.
The Court held that the District's decision not to defend nor indemnify Cotter was not arbitrary or capricious. (CPLR 7803.) The Court dismissed the Petition..
The Garden City School District website can be found here www.gardencity.k12.ny.us/



Due Process Hearing satisfied through Grievance and Article 78

Pinder v. City of New York                    Index #113435

Plaintiff sued under 42 USC 1983 for damages of violations of Due Process and Employment Discrimination under Executive Law sect 296.  The First Department dismissed the complaint and held that Plaintiff was a non-tenured paraprofessional without property rights in her position.

Plaintiff had not proven that there was a “stigma-plus” due process claim as there was no proof that the reasons for her discharge was published to prospective employers.  Finally, the Court wrote that due process was satisfied when the Plaintiff used the CBA’s grievance procedure and an filed an Article 78 petition.

The City’s website is www.nyc.gov

Article 78 dismissed for failure to exhaust administrative remedies

Murray v. Downey Index No 11224/06

This was an Article 78 to review Bronxville’s Police Chief’s decision to dock a single day’s pay from Joseph Murray. The Respondent’s moved to dismiss for Petitioner’s failure to exhaust his administrative remedies prior to filing an Article 78. 

The Appellate Division, Second Department affirmed the dismissal.

Petitioner filed a grievance with respect to the decision that petitioner Joseph Murray was not allowed to use sick leave on May 30, 2005. The grievance found its way to the Police Chief; Village Administrator and Village Board of Trustees. Petitioners failed to then send the grievance to arbitration as required by the Collective Bargaining Agreement. The Bronxville Police Department website is: villageofbronxville.com/subc2_police.htm

Civil Service Commission disqualifies applicant



Disqualifying an applicant for appointment by a civil service commission
Matter of Murray v County of Nassau Civil Service Commission, 2007 NY Slip Op 50927(U), Supreme Court, Nassau County, James P. McCormack, J.

The Nassau Civil Service Commission disqualified Sandor Murray for employment as a Nassau County Police Officer. The Commission based its determination of Murray’s alleged failure to meet the “psychological requirement of the position.”

Murray, claiming that the Commission “acted in an arbitrary and capricious manner” when it disqualified him for appointment as a police office, filed an Article 78 petition seeking a court order directing his appointment as a Nassau County Police Officer.

Judge McCormack dismissed Murray’s petition, holding that the Commission’s decision was not irrational. Indeed, said the court, its determination is “supported by substantial evidence.” In addition, Judge McCormack found that the Commission had complied with New York Civil Service Law Section 50(4) when it considered whether Murray should be disqualified for appointment as a police officer. *

According to the decision, the standard for judicial review of an administrative determination pursuant to CPLR Article 78 is limited to an inquiry into whether the agency acted arbitrarily and, or, capriciously.

Noting that a civil service commission has wide discretion in determining the fitness of candidates, Judge McCormack, citing Verne v. Suffolk County Department of Civil Service, 5 AD2d 498 and Needleman v. County of Rockland, 270 AD2d 4, said that the exercise of such discretion “is particularly broad in the hiring of persons for position in law enforcement, to whom high standards must be applied.”

The decision points out that although Murray’s medical expert’s opinion differed from that of the Commission’s medical expert, “[i]t is not for the courts to choose between diverse professional opinions.”

Thus, said the court, “where there is any rational basis or credible evidence in support of an agency’s determination,” the administrative decision will be upheld (see Matter of Curcio v. Nassau County Civil Service Commission, 220 AD2d 412).

____________


* Section 54.4, in pertinent part, provides: No person shall be disqualified pursuant tothis subdivision unless he [or she] has been given a written statement of the reasonstherefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.




Source: Initially published on the Internet in
New York Public Personnel Law. Reproduced with permission. Copyright© 2006, 2007, 2008, Public Employment Law Press.

Article 78 Reinstatement as a Police Cadet Denied

Chan v. Kelly, the New York Police Department, and the City of New York
Index No. 110513/07

Petitioner William Chan sought reinstatement as a police cadet by respondents Raymond Kelly, the New York City Police Department, and the City of New York in this Article 78 petition. 

Patrol Guide §212-34 governs probationary police officers, and states in part that when a probationary police officer or person eligible for appointment to the NYPD is involved in a police incident, a member of the service must report the incident to a commanding officer. The Police Cadet Corps Handbook also states, at § 105-4, that “[a] police incident not only involves arrests but includes all police incidents”. 

While Chan denies he violated written procedure, he does not deny that he left the scene of a serious multi-car accident, that he did not attempt to render assistance, and that he failed to notify a commanding officer. On the basis of these facts, respondents concluded that Chan violated Patrol Guide §212-34 and “failed to demonstrate the integrity, judgment, and character required of either a New York City Police Officer or a Police Cadet”. 

The court wrote that:

“Chan’s petition does not meet this burden [of bad faith]… On the contrary, evidence in record supports the conclusion Chan was discharged by respondents in good faith on the basis of his unsatisfactory performance.” 

Accordingly, the Court denied this Article 78 petition.

 Read entire article here.

Appealing Medical and Pyschological Disqualifications

Overview of medical and psychological disqualifications

 The NYS Civil Service Law along with the NYC Charter authorizes the DCAS Commissioner to disqualify a potential candidate to a competitive position for failure to meet medical and psychological standards. If this occurs, the candidate has the right to appeal the disqualification to the New York City Civil Service Commission.

 Section 814(a)(6) of the New York City Charter provides that the DCAS Commissioner investigates and reviews the qualifications of applicants for positions in civil service.

 Section 813(d) of the Charter provides that the CCSC has the power to hear and determine appeals.

Section 815(a)(5) provides that agency heads assist DCAS in reviewing and evaluating a candidate’s qualifications, a Section 815(a)(18) permits the delegation by the DCAS Commissioner of certain personnel management functions to agency heads.

 It is the Hiring Agency’s responsibility to ensure that these processes are followed with regard to candidates for positions in its agency.

 The CCSC will forward appeals and documentation, if submitted, in support of an appeal of medical and psychological disqualifications to the office within each Hiring Agency for such purpose. The Hiring Agency will first ascertain that the appeal to the CCSC was filed by the candidate within thirty days of the date of the action. If the candidate did not file the appeal with the CCSC in a timely fashion, the Hiring Agency will request that the appeal be dismissed on that basis.

 When filed in a timely fashion, the Hiring Agency will, prior to preparing any submission to the CCSC to support the disqualification, afford the disqualified candidate sixty days in which to submit medical documentation to support the appeal.

 If a candidate submits medical and/or psychological documentation to support the appeal from the disqualification, the CCSC will forward any new documentation to the office within each Hiring Agency identified for such purchase. The Hiring Agency will review and give due consideration to each new documentation commensurate with the weight of the new documentation. Review and consideration may include scrutiny of the documentation by a doctor of the Hiring Agency or an independent consultant, or a re-examination of the candidate.

 In cases where a Hiring Agency decides not to rescind a disqualification, they are responsible for submitting to the CCSC a cover report explaining the decision to disqualify a candidate. The cover report must contain a reference to the specific medical or psychological standard not met by the candidate, an explanation of how the candidate did not meet this standard, how failure to meet standard prevents the candidate from performing an essential function of the position, and reference to any documentation supplied by the candidate with an explanation as to why said documentation does not serve as a basis to rescind the disqualification. Along with the cover report should be copies of all medical or psychological records that support the disqualification clearly labeled as records in support of the disqualification and copies of all medical or psychological records submitted by the candidate in support of their contention that he or she is qualified for the position clearly identified as records in support of the candidate’s appeal.

 If an evidentiary hearing is determined necessary, the CCSC must forward the notice to the Hiring Agency and the Office Manager of the Office of the General Counsel of DCAS.

 The Hiring Agency is responsible for maintaining statistics required by DCAS to ensure that the mandatory processes are being followed. Each Hiring Agency must maintain the statistics of the number of appeals forwarded to the Hiring Agency by the CCSC, the date on which the appeals were submitted to the CCSC, and the date on which cover reports were submitted to the CCSC.

 Read entire article here.

Summary New York State Civil Service Commission

The New York State Civil Service Commission

The CSC exercise authority over the classified civil service of the State.

The CSC retains broad merit system oversight responsibilities for both State and local government.

The functions of the Commission can be divided into three categories:

Quasi-Legislative Authority :The Commission promulgates rules and regulations for the classified service (this includes the Rules for the Classified Service and the Commission's Regulations).

Appellate Authority :The CSC can hear appeals in disciplinary cases for employees not covered by contract; appeals regarding involuntary leaves of absence; appeals from examination ratings; and appeals from actions of the President of the Commission,

Investigative Authority : The CSC can investigate any matter concerning the enforcement and effect of the Civil Service Law or Rules.

The CSC is comprised of three members appointed by the Governor, on the advice and consent of the State Senate. By law, no more than two Commissioners can be members of the same political party. The Governor designates one of the three Commissioners as the President of the Commission.

The CSC conducts its business during its annual schedule of eleven monthly meetings. 

The Commission Meeting Calendar lists the issues before the CSC at each monthly meeting.

  1. Executive Items :

Jurisdictional: By law, classified service positions are in the competitive jurisdictional class, unless the CSC acts to approve placement outside of the competitive class. CSC resolutions are signed by the President of the Commission and take effect upon signature by the Governor and filing with the Secretary of State.

Text Amendments:The CSC can amend the text of the Rules for the Classified Service, Attendance   Rules and the Regulations of the State CSC (Commission's Regulations).

  1. Staffing Services : The Civil Service Law allows for discretionary unpaid leaves of absence for permanent employees who depart State service or accept State positions outside of the competitive class. CSC approval

      is required to extend these leaves beyond the original two-year period.

  1. Reinstatements : Within one year of resignation, an agency may restore a former permanent employee to his or her previous job, without examination, if the position is unfilled when reinstatement is sought. Beyond one year from the resignation date, reinstatement requires Commission approval.

4.      The Testing Program:

      Committee on Appeals: The Establishment of Rating Keys for Written Tests.

      Two members of the CSC act as Chairpersons of the Committee(s) on Appeals.The Committee on Appeals decides whether the exam rating keys should be adjusted, based upon candidates' objections and the Testing Division's analyses. CSC approve final rating keys, eligible lists can be established.

      The CSC examines proposed changes to the text of municipal civil service rules and proposed changes to the rules.

      RSSL § 211 authorizes the State CSC to waive the § 212 income limitations. A § 211 waiver enables a retiree to accept a full-time government job without compromising the pension benefit earned from prior service

5 . Extensions in Service Over Age Seventy (Superannuation Retirement): Employees who remain subject to RSSL § 70 must obtain CSC approval to continue in office.

6.   Appeals: Aggrieved individuals can appeal departmental actions to the CSC, Appeals from Determinations of the Staffing Services Division , Candidate Disqualification, Appeals from Determinations of the Testing Services Division, Appeals from Determinations of the Director of the Division of Classification and Compensation, Appeals from Determinations of the Employee Health Service Regarding Eligibility under the CSL § 55 (b)(c) Programs & Appeals Regarding Disability Leaves and Reinstatement Issues, a) Reinstatement after Separation for Disability under Workers' Compensation (CSL § 71 b) Leave for Ordinary Disability (CSL § 72 c) Separation for Ordinary Disability; Reinstatement (CSL § 73) d) Employee Disciplinary Proceedings (CSL § 75 and § 76)

7          Merit Awards: State worker or retiree is eligible to submit ideas through the Employee Suggestion Program.

            Suggestions recommended for an award, is approved by CSC. Awards can range from a Certificate of Merit     to payments totaling $50,000

      8    Conferences : Parties with business before the CSC can request a Conference with the Commission.

Section 75 case dismissed- Misconduct due to Mental Disability Section 72 applies

NYC Human Resources Administration v. Barnes

 This Office of Administrative Trials and Hearings (OATH) case was decided by ALJ Alessandra Zorgniotti on November 15, 2007.   Human Resources Administration (HRA) filed charges under Section 75 of the Civil Service Law against the respondent Barnes. Ms. Barnes had been involuntarily committed by her son and did not appear at the hearing. 

The issue was whether the misconduct which resulted in charges being filed by HRA against Ms. Barnes was the result of a mental disability.  Trial testimony revealed that after the death of her child’s father and her mother Ms. Barnes behavior took a radical turn for the worse.  Respondent had been previously described as “warm; soft spoken and respectful.” 

The Court held that the evidence proved that the misconduct was the result of a mental disability and that HRA should have filed an action under Section 72 of the Civil Service Law rather than Section 75. Finally, the ALJ held that OATH could not convert a disciplinary hearing to a disability hearing  in the respondent’s absence but left HRA the option to proceed under Section 72 for a disability leave. 

Article 78 for Master Electrician's License Denied

Solomon v. The Department of Buildings of the City of New York

 This was an Article 78 Petition decided by the Appellate Division, First Department which sought:

An order directing respondent to either grant the petitioner’s master electrician license without any further hearing or that new rules be promulgated or barring the Master Electricians Licensing Board (MELB) from investigating the quality of petitioner’s supervision by a master electrician for the requisite statutory period of time. The petition was denied.

 The Court found that MELB did not act in excess of its jurisdiction when it considered the sufficiency of the license applicant’s supervision by a licensed electrician. Citing Administrative Code 27-3009(c) the Court held that the MELB is empowered to “investigate the character and fitness…” and report such findings. Neither was MELB required to write rules of procedure in investigating applicants. The applicant did not have a right to the license similar to a present license holder who was facing revocation or suspension of his/her license.

 Accordingly, the Court denied this Article 78 petition. 

Corrections Officer's Article 78 Petition to Reverse Termination Denied

                                                                                                                                               

Matter of Curtis Marshall v. Martin Horn

Index No.: 100879/07   SUPREME COURT, NEW YORK COUNTY

 In this Article 78 proceeding, Petitioner sought a judgment annulling the determination of Mr. Martin Horn, which terminated his employment as a correction officer. Respondent sought to dismiss the petition for failure to state a cause of action.  

Petitioner was a probationary correction officer with DOC. He stopped at a local bodega and bought a straight edge razor in order to make an opening inside the stitched area of the upper left side of his new regulation shirt so that he could affix his shield to the shirt. After using the razor, Mr. Marshall placed it in a small plastic container which he put in his gym bag. He then reported to work to begin his 7:OO a.m. to 3:OO p.m. tour of duty.

Upon entering his work site, Petitioner placed his gym bag on the x-ray scanner and proceeded to walk through security.  The correction officer manning the security post, noticed the razor in Petitioner’s gym bag and instructed him to put it in the amnesty box outside. The officer on dutyinformed Petitioner that she would have to report the incident.

 After being transferred to a different assignment the Petitioner was terminated from his position.

Petitioner then commenced this Article 78 proceeding by the filing a notice of petition and

verified petition on January 19,2007, challenging DOC’S determination that he be discharged on the

grounds that DOC’S actions were arbitrary, capricious and made in bad faith.

Petitioner asserts in his petition that DOC’S decision to terminate him for mistakenly placing the razor in the gun box instead of the amnesty box lacked a rational basis because his

 “unfamiliarity with the amnesty box does not violate any rule or regulation and the only directive pertaining to amnesty boxes makes clear that it exists for individuals visitingthe correction facilities.”

The Court wrote that :

“Inasmuch as the petition fails to “allege evidentiary facts suggesting that the dismissal was motivated by an improper purpose or bad faith,” the petition must be dismissed for failure to state a cause of action.

The cross motion to dismiss the petition was granted.

Court directs Unsatisfactory Rating Be Removed from Teacher's Record

  Smith v. Board of Education of the City School District of the City of New York,

118947/06

 Ms Eileen Smith, a Social Studies teacher at Far Rockaway High School given unsatisfactory
rating on  June 24, 2004, for the 2003-2004 school year due to an incident occurred on October 21, 2003, the first day of the implementation of a new policy at school. Smith filed an Article 78 proceeding.

One minute after the late bell had rung signaling that classes had changed, teachers were required to lock their classroom doors. In Ms. Smith’s class, the ones locked out banged on her door to compel the teacher to let them in. Ms. Smith then attempted to leave the room to get help, but two students in the classroom held the door closed.

Ms. Smith acknowledged having used inappropriate language during the chaotic time. Ms. Smith allegedly had said: "This 'fucking' language has to stop. I do not want abusive or profane talk in the class." Ms. Smith had also reportedly said: "I will not continue until the stupids stop," and then presumably in an effort to clarify added: "I mean the stupid remarks. I am not calling anyone stupid."

Ms Smith was found to have "committed acts which are prohibited by the Chancellor's Regulation A-420 Corporal Punishment and Chancellor's Regulation A-420 Verbal Abuse which constitutes unacceptable teacher deportment." The letter concluded that the finding "may lead to disciplinary action, including an Unsatisfactory rating and termination."

Ms. Smith filed a grievance. An arbitrator ruled that the letter should be deleted from Eileen Smith's file because it is unfair and inaccurate as these terms have been defined by the parties. Also Ms. Smith had received an "Unsatisfactory" rating and immediately appealed it. That hearing was held on May 31, 2006 before the Chancellor's designated Chairperson. 

It was recommended that the appeal be denied and rating of "Unsatisfactory" be sustained.  This Article 78 followed. The Court held that:

The Commissioner and the courts have held that a U-Rating cannot be sustained where, as here, the Chairperson improperly relies on documents which should have been excluded from consideration at the teacher's appeal. The A-420 (report prepared regarding alleged foul language) are not based on any personal observation by any administrator; instead, they are based solely on the hearsay statements written by the students. Thus, the A-420, by itself, cannot support the U-Rating.

Without the various documents, the only evidence left is the undisputed fact that Ms. Smith made the above-quoted statements in the midst of an extremely difficult time in class. The Chairperson's reluctance is revealed by her finding that the evidence "leaves many questions," by her emphasis on Ms. Smith's repeated calls for help.

Thus, while it may well be that Ms. Smith could have achieved her goal by using different language, it cannot reasonably be said that the language she used qualifies as prohibited verbal abuse as defined in the Regulations sufficient to support an Unsatisfactory Rating.
 

The Court reversed the denial of the appeal and directed that the Department remove the unsatisfactory rating from the teacher’s file.

Overview of New York State Civil Service Commision

The New York State Civil Service Commission

The CSC exercise authority over the classified civil service of the State.

The CSC retains broad merit system oversight responsibilities for both State and local government.

The functions of the Commission can be divided into three categories:

Quasi-Legislative Authority :The Commission promulgates rules and regulations for the classified service (this includes the Rules for the Classified Service and the Commission's Regulations).

Appellate Authority :The CSC can hear appeals in disciplinary cases for employees not covered by contract; appeals regarding involuntary leaves of absence; appeals from examination ratings; and appeals from actions of the President of the Commission,

Investigative Authority : The CSC can investigate any matter concerning the enforcement and effect of the Civil Service Law or Rules.

The CSC is comprised of three members appointed by the Governor, on the advice and consent of the State Senate. By law, no more than two Commissioners can be members of the same political party. The Governor designates one of the three Commissioners as the President of the Commission.

The CSC conducts its business during its annual schedule of eleven monthly meetings. 

The Commission Meeting Calendar lists the issues before the CSC at each monthly meeting.

  1. Executive Items :

Jurisdictional: By law, classified service positions are in the competitive jurisdictional class, unless the CSC acts to approve placement outside of the competitive class. CSC resolutions are signed by the President of the Commission and take effect upon signature by the Governor and filing with the Secretary of State.

Text Amendments:The CSC can amend the text of the Rules for the Classified Service, Attendance   Rules and the Regulations of the State CSC (Commission's Regulations).

  1. Staffing Services : The Civil Service Law allows for discretionary unpaid leaves of absence for permanent employees who depart State service or accept State positions outside of the competitive class. CSC approval

      is required to extend these leaves beyond the original two-year period.

  1. Reinstatements : Within one year of resignation, an agency may restore a former permanent employee to his or her previous job, without examination, if the position is unfilled when reinstatement is sought. Beyond one year from the resignation date, reinstatement requires Commission approval.

4.      The Testing Program:

      Committee on Appeals: The Establishment of Rating Keys for Written Tests.

      Two members of the CSC act as Chairpersons of the Committee(s) on Appeals.The Committee on Appeals decides whether the exam rating keys should be adjusted, based upon candidates' objections and the Testing Division's analyses. CSC approve final rating keys, eligible lists can be established.

      The CSC examines proposed changes to the text of municipal civil service rules and proposed changes to the rules.

      RSSL § 211 authorizes the State CSC to waive the § 212 income limitations. A § 211 waiver enables a retiree to accept a full-time government job without compromising the pension benefit earned from prior service

5 . Extensions in Service Over Age Seventy (Superannuation Retirement): Employees who remain subject to RSSL § 70 must obtain CSC approval to continue in office.

6.   Appeals: Aggrieved individuals can appeal departmental actions to the CSC, Appeals from Determinations of the Staffing Services Division , Candidate Disqualification, Appeals from Determinations of the Testing Services Division, Appeals from Determinations of the Director of the Division of Classification and Compensation, Appeals from Determinations of the Employee Health Service Regarding Eligibility under the CSL § 55 (b)(c) Programs & Appeals Regarding Disability Leaves and Reinstatement Issues, a) Reinstatement after Separation for Disability under Workers' Compensation (CSL § 71 b) Leave for Ordinary Disability (CSL § 72 c) Separation for Ordinary Disability; Reinstatement (CSL § 73) d) Employee Disciplinary Proceedings (CSL § 75 and § 76)

7          Merit Awards: State worker or retiree is eligible to submit ideas through the Employee Suggestion Program.

            Suggestions recommended for an award, is approved by CSC. Awards can range from a Certificate of Merit     to payments totaling $50,000

      8    Conferences : Parties with business before the CSC can request a Conference with the Commission.

In Light of Long Beach Case NYC Seeks Fewer Provisional Employees.

On August 17 2007 The Chief -- Civil-Service Leader  reported that the New York City Department of Citywide Administrative Services (DCAS) has begun to prepare for more Civil Service tests to avoid what happened to Long Beach when that city was directed to fire their provisional employees. 

In an earlier entry the New York State Court of Appeals held that Long Beach despite a provision in their Collective Bargaining Agreement protecting their long-term provisional employees the City would not be able to retain those employed over nine months in violation of Civil Service Law. In the Long Beach case the Court of Appeals held that  negotiated agreements could not supersede Civil Service law provisions.

The Bloomberg administration understanding that the Court of Appeals decision directing that provisionals be employed for no longer than a nine-month timeframe. The Chief reported that the state legislature has passed a bill to amend the civil-service law to require systematic methods of replacing provisionals with permanent employees.

Employer does not need anger management training to accomodate Employee with disability

A Nassau County Supreme Court judge has recently ruled that an employer does not have to attend  anger management counseling to accommodate an employees disability. In the decision issued recently employee alleged that his Parkinson's disease was exacerbated by an employer's volatile behavior. The plaintiff alleged that the employer assured him he would remain calm to avoid disturbing the plaintiff/employee. When the employer failed to do so the employee brought suit. Among other determinations the judge hearing the case found that although anger management may be imposed and child neglect and matrimonial cases requiring an employer to attend anger management goes beyond "reasonable" accommodation in the workplace Racing Recovery LLC V. Abbate 017764\2005 Decided 8/10/07