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 Michael MacLeod v Robert l. Megna, as Commissioner of Taxation and Finance

 In this Article 78 case, the court reviewed a decision of the Tax Appeal Tribunal which uphold sales and use tax assessment required under Tax Law articles 28 and 2.

Petitioner was the president and sole shareholder of MJM Studios of New York, Inc. This was a New Jersey company that specialized in creating architectural enhancements of buildings in numerous states.

Respondent informed petitioner that they would be conducting a field audit and required access to all MJM’s records. Petitioner could not provide access to the records because they were in possession of a bankruptcy trustee. The auditor made several attempt to contact the bankruptcy trustee and also made several more requests of petitioner to provide the records. After the unsuccessful attempts, the auditor calculated an estimated sales and use tax based on deposits in MJM’s bank records and he adjusted through MJM’s franchise tax returns to include only New York sales. Following a conference, the assessed amount was reduced. In addition to a hearing, the Department agreed to further reduce the assessed amount.

The Tax Appeal Tribunal affirmed the tax assessment. Due to a statutory presumption that all money received by MJM for products and services were taxable, petitioner has the burden of establishing by “clear and convincing evidence” that the money was not taxable and the assessment was erroneous. He failed to prove that the capital improvement exemption applies.

Even though the records were in possession of the trustee, there was no evidence that petitioner attempted to retrieve the records for the auditor.Due to the lack of documentation from petitioner, the auditor needed to come up with its own method to determine the tax assessment.

The determination is confirmed, without costs, and petition dismissed.

Read more about this Article 78 case here.

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

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The Village of Montgomery and Town of Mount Hope must stop using in-house police ranks and start hiring police supervisors from a competitive list. Orange County has decided not to certify its payroll if they do not comply with Civil Service Law. After a local paper identified village officers as chiefs and sergeants, the Personnel Commissioner began investigating the county’s use of police titles and their non-compliance with state Civil Service Law. The new Commissioner feels that the departments need a supervisor who holds a rank of sergeant or higher and that a police officer should not be filling a supervisory rank. The Village of Montgomery is currently interviewing candidates for a part-time police chief and an additional supervisor.

Read more about this Civil Service 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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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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The New York State Department of Civil Service has a detailed Summary of Civil Service Law available. To find out more about civil service law, check out this PDF file: www.cs.state.ny.us/pio/publications/summofcsl.pdf.

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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.

Read full article here.

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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.

Read full article here.

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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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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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