New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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).

2. 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.

3. 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.

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