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Editor: Mitchell H. Rubinstein
New York Law School

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Saturday, April 30, 2011

Title IX Abuse

College Teams, Relying On Deception Undermine Gender Equity is an important April 25, 2011 article from the New York Times. The article describes how many universities are padding their woman's sport teams in order to make it look like they are complying with Title IX. As the article states:

At the University of South Florida, more than half of the 71 women on the cross-country roster failed to run a race in 2009. Asked about it, a few laughed and said they did not know they were on the team.

At Marshall University, the women’s tennis coach recently invited three freshmen onto the team even though he knew they were not good enough to practice against his scholarship athletes, let alone compete. They could come to practice whenever they liked, he told them, and would not have to travel with the team.

At Cornell, only when the 34 fencers on the women’s team take off their protective masks at practice does it become clear that 15 of them are men. Texas A&M and Duke are among the elite women’s basketball teams that also take advantage of a federal loophole that allows them to report male practice players as female participants.

Title IX, passed in 1972 at the height of the women’s rights movement, banned sex discrimination in any federally financed education program. It threw into sharp relief the unequal treatment of male and female athletes on college campuses.

Mitchell H. Rubinstein

April 30, 2011 in Discrimination Law | Permalink | Comments (0)

Employment at will

DiLacio v New York City District Council of United Brotherhood of Carpenters & Joiners of Am., 2011 NY Slip Op 00175, Appellate Division, Second Department

In this action George DiLacio, Jr. sued the District Council in an effort to recover damages for alleged wrongful termination of employment and defamation.

The Appellate Division ruled that both complaints should have been dismissed.

With respect to DiLacio allegations concerning “wrongful termination,” the court pointed out that he had served as “an employee at will.” Citing Murphy v American Home Prods. Corp., 58 NY2d 293, the Appellate Division ruled that DiLacio’s allegation that the District Council had violated their duty to terminate his employment "only in good faith and with fair dealing" failed to state a recognized cause of action under New York law.

Under New York law, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired."

Unless the individual has a statutory or contractual right to a pre-termination hearing he or she may be terminated at any time so long as the termination is not otherwise unlawful under State or federal law.

As to DiLacio’s defamation claim, the court said that although the termination letter containing the phrase "severe dereliction of duty," it had not been published to anyone other than DiLacio himself. 

The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00175.htm

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

April 30, 2011 in Employment-At-Will & Exceptions | Permalink | Comments (0)

Friday, April 29, 2011

School Law Jobs

School Law Jobs
Job Title Employer Job Location
Director of the Education and Legal Alliance/Assoc. General Counsel California School Boards Association Sacramento, California
Chief Counsel to the School Board School District of Palm Beach County West Palm Beach, Florida
Chief Legal Officer Illinois School District U-46 Elgin, Illinois
School Law Attorney Brannan Legal Search Chicago, Illinois
Labor & Employment Law Attorney Thrun Law Firm, P.C. East Lansing, Michigan
School Attorney Drummond Woodsum Portsmouth, New Hampshire
Education Law Associate Walter & Haverfield LLP Cleveland, Ohio
Education Law Associate Reed Smith LLP Richmond, Virginia
School Board Attorney Chesterfield County Public Schools Chesterfield, Virginia

 

April 29, 2011 in Lawyer Employment | Permalink | Comments (0)

Thursday, April 28, 2011

Public Employee Pensions Under Attack

Public Pensions, Once Off Limits, Face Budget Cuts is an interesting April 25, 2011 article from the New York Times. It outlines how public employee pensions are under attack in many states. As the article states:

Conventional wisdom and the laws and constitutions of many states have long held that the pensions being earned by current government workers are untouchable. But as the fiscal crisis has lingered, officials in strapped states from California toIllinois have begun to take a second look, to see whether there might be loopholes allowing them to cut the pension benefits of current employees. Now the move in Detroit — made possible, lawyers said, because Michigan’s constitutional protections are weaker — could spur other places to try to follow suit.

“These things do tend to be herd-oriented,” said Sylvester J. Schieber, an economist and consultant who studies pensions.

The mayors of some hard-hit cities have said that the high costs of pensions have forced them to lay off workers: Oakland, Calif., laid off one-tenth of its police force last year after failing to win concessions on pension costs.

Mitchell H. Rubinstein

April 28, 2011 in Employee Benefits Law, Public Sector Employment Law | Permalink | Comments (0)

Bullied Student Denied FAPE

Judge Jack Weinstein recently issued a major decision concerning a case of first impression. Namely, whether a disabled student can be denied a Free and Appropriate Public Education because of bullying. In a lengthly decision which extensively reviews the IDEA, Judge Weinstein concludes,  yes and he refuses to follow the New York IHO decision as well as the New York SRO decision below. TK v. NYC Department of Education, Index No. 10-CV-00752 (E.D.N.Y. April 28, 2011) (available here), (free registration required). 

The plaintiff was a 12 year old with autism. The key part of the decision is the court's holding that "[A]n effective and appropriate education may be negated by child bullying." Judge Jack B. Weinstein also stated: "When a school fails to take reasonable steps to prevent such objectionable harassment of a student, it has denied her an educational benefit protected by statute."

Law review commentary on this novel issue would be most welcome. 

Mitchell H. Rubinstein

April 28, 2011 in Law Review Ideas, Special Education Law | Permalink | Comments (1)

DOJ files suit on behalf of Muslim teacher against Illinois school over denial of leave of absence to attend religious pilgrimage

Reportedly, the U.S.  Department Department of Justice has filed suit against Berkeley School District 87 alleging it violated a Muslim teacher’s rights under the federal Civil Rights Act of 1964 by failing to reasonably accommodate her religious practices. It is alleged that the District, denied the teacher's request to take  unpaid leave to make a pilgrimage to Mecca, which is a central part of her religion, on grounds that her requested leave was unrelated to her professional duties and was not set forth in the contract between the school district and the teachers’ union. After the district twice denied her request, Khan wrote the board that “based on her religious beliefs, she could not justify delaying performing hajj,” and resigned shortly thereafter.

It will be interesting to see how the court rules. 

Source: NPR, 12/13/10, By Associated Press

Mitchell H. Rubinstein

April 28, 2011 in Education Law, First Amendment | Permalink | Comments (0)

Wednesday, April 27, 2011

NLRB Issues A Complaint Against Boeing For Intentionally Creating Double Breasted Operations

Nlrb

It has long been the law that an employer cannot transfer a plant to a new location to avoid a union or a union contract. Today, we rarely see employers who express state that they are moving a plant because of the union. Remarkably, the NLRB recently issued a complaint against Boeing based upon statements its executives made. The complaint alleges violations of Sections 8(a)(1) and 8(a)(3) because of Boeing's transfer of work from its unionized Washington plant to its non-union South Carolina plant. Additional details can be found in the NLRB's press release.

A copy of the complaint is here

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

April 27, 2011 in NLRB | Permalink | Comments (0)

Affirmative Action For Veterans

OFCCP recently proposed an affirmative action rule for veterans. That rule can be found 

 here

 

Interestingly, the affirmative action here is more like simply outreach, record keeping and non-discrimination. I did not see anything expressly mentioning preference. It is the notion of preference which makes affirmative action so controversarial. 

 

 

Mitchell H. Rubinstein                                                                                                                                                                                                                                                                                            Hat Tip: Workplace Prof Blog

 

 

 

 

April 27, 2011 in Discrimination Law | Permalink | Comments (0)

New York Enacts Wage Theft Protection Act

Governor Patterson recently signed the Wage Theft Protection Act into law. 

There is growing evidence that minimum wage violations are quite common in this country. No doubt this statute was enacted to combat this as well as over-time violations. It amends the state labor law. Specifically, the statute imposes additional notice requirements requiring that employees be informed in writing about their rate of pay and eligibility for over-time pay, requires that employers maintain payroll records for 6 years, provides the state commissioner of labor with additional enforcement powers, provides employees may recover liquidated damages and attorneys fees. Most interesting is that employers who commit willful violations can be responsible criminally. If the amount is more than 1 millions dollars it can even be a felony. Query, how can an employer serve jail time and who from the employer would be criminally responsible?

It will be interesting to see if this new law changes anything.

Mitchell H. Rubinstein

April 27, 2011 in Employment Law, Legislation, New York Law | Permalink | Comments (1)

Tuesday, April 26, 2011

CSL §75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are served

Matter of Nygard v County of Warren, 2010 NY Slip Op 09060, decided on December 9, 2010, Appellate Division, Third Department

Thomas Nygard, a Warren County deputy sheriff, was served with disciplinary charges alleging seven acts of misconduct pursuant to §75 of the Civil Service Law. Such charges included alleged acts of misconduct that occurred while Nygard was “off-duty.”

Ultimately the §75 Hearing Officer found Nygard guilty of four of the charges. The Hearing Officer, considering the results in another recent disciplinary matter involving Nygard,*recommended termination as the penalty to be imposed by the appointing authority. 

Nathan H. York, the Warren County Sheriff, Nathan H. York, found that the record supported sustaining one additional charge, for a total of five, and terminated Nygard from his position.

Nygard appealed, contending that his “statutory rights” had been violated because his request to adjourn an administrative investigation that ultimately lead to disciplinary charges being filed against him until he could have an attorney present was rejected. Accordingly, Nygard argued, “all information gleaned at the inquiry should have been excluded from the subsequent disciplinary proceeding.”

The Appellate Division disagreed, noting that Civil Service Law §75(2) establishes two different requirements for representation depending on the stage of the administrative disciplinary proceeding.

First, said the court, Subdivision 2 provides that during questioning of an employee who "appears to be a potential subject of disciplinary action," the employee has a right to have a union representative present. If the appointing authority fails or refuses to permit the individual to have his or her union representative present, Subdivision 2 states that the failure to afford this right to the employee bars the use of any statements made, or evidence derived, in the course of the initial questioning in the absence of such representation from being used in the disciplinary hearing.

However, noted the Appellate Division, there is a “second stage” in the disciplinary process addressed in §75(2) that expands the employee’s right to representation to include the right to representation by an attorney** once disciplinary charges have been filed against an individual and a scheduled hearing.

The Appellate Division ruled that in Nygard’s case, the administrative inquiry constituted a “stage one questioning” at which he had a union representative present. Accordingly, said the court, the relevant statutory requirement was satisfied and “the record reveals no violation of proper procedures.”

Nygard also contended that his off-duty conduct was improperly considered as a basis for disciplinary action. The court disposed of this argument by pointing out that “An employee may be disciplined for actions occurring while off-duty, citing Villanueva v Simpson, 69 NY2d 1034.

Finding that substantial evidence supported each of the five disciplinary charges sustained by the Sheriff, the Appellate Division rejected Nygard’s claim that dismissal was too harsh a penalty in this instance, finding that termination was not "so disproportionate as to be shocking to one's sense of fairness."***

Here, said the court, the penalty did not rise to that level given the nature of the charges sustained, “particularly when considered together with the fact" that only a few months earlier [Nygard] had been disciplined for a similar off-duty incident.

* In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if 1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and 2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

** §75(2) provides that in disciplinary hearing stage of the process, in contrast to investigatory stage of the procedure, the hearing officer shall “upon the request of the person against whom charges are preferred, permit him [or her] to be represented by counsel or by a representative of a recognized or certified employee organization….”

*** The so-called Pell Doctrine, Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09060.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

April 26, 2011 in Public Sector Employment Law | Permalink | Comments (1)

Breaking News Judge Enjoins NFL Lockout

A federal judge recently issued an injunction ending the lockout impose

d by the NFL. Details here.                    Mitchell Rubinstein

 

 

April 26, 2011 in Unions | Permalink | Comments (0)

Monday, April 25, 2011

2d Circuit Issues Important Decision on Student First A Rights and Section1983

2dcircseal

Donninger v. Niehoff, ___F.3d___(2d Cir. April 25, 2011), Download Donninger II is an interesting case. It concerns the First Amendment rights of secondary students to post a blog crticial of her school and to wear a tee shirt crticial of the administration.  

This decision, which is 37 pages long, actually never reaches the central issue, namely whether a student can be disciplined for a blog entry. This was because the defendants were entitled to qualified immunity. The First Amendment right at issue was not clearly established at the time of the incident.

The case is an excellent primer on the First Amendment rights of students and on 1983 qualified immunity.  

This is actually the 2d time that the case reached the circuit. Look for a cert petition to be filed. 

Mitchell H. Rubinstein

April 25, 2011 in Education Law, First Amendment | Permalink | Comments (0)

Indiana bill restricting teacher collective bargaining rights clears state senate, goes to governor

A bill to restrict Indiana teachers’ collective bargaining rights has cleared its final legislative hurdle, and has been sent to Gov. Mitch Daniels for his signature, reports Bloomberg Businessweek. The Indiana Senate voted 30-19 in favor of a House-passed version of the bill, which would prohibit contracts between school districts and teachers’ unions from including anything other than wages and wage-related benefits. The limits would affect contract agreements between districts and unions for teachers and any other school employees, such as bus drivers, custodians and nurses, starting July 1, 2011. 

Bloomberg Businessweek, 4/19/11, By Deanna Marti

April 25, 2011 in Unions | Permalink | Comments (0)

Montana school district’s practice of prohibiting students from stating personal religious beliefs during valedictory address violates students’ free speech rights

Griffith v. Butte Sch. Dist. No. 1, No. 10-0109 (Mont. Nov. 19, 2010), is an interesting caseThere, the Montana Supreme Court held that a school district’s practice of prohibiting students from commenting on their personal religious beliefs during valedictorian speeches violated a student’s First Amendment rights. The court concluded that the practice constituted viewpoint discrimination that could not be justified on the basis that the speech would be perceived as bearing the school’s imprimatur.

Mitchell H. Rubinstein

April 25, 2011 in Education Law | Permalink | Comments (0)

Sunday, April 24, 2011

Columbia Student Unsuccessfully Challenges His F

2ddept.

It is virtually impossible for a student to successfully challenge a grade given by a university. In Matter of Zartoshti v. Columbia University, ___A.D.3d___ (1st Dep't. Dec. 7, 2010), the court dismissed such a case and held that literal compliance with a student handbook was not required. As the court stated:

Petitioner contends that respondent failed to comply with its own procedural rules as set forth in the Student Handbook. However, petitioner received sufficient notice of the charges, evidence and proceedings against him. The record shows that petitioner was informed at the first hearing of the material allegations and evidence leading to the charges and was thereafter afforded a second hearing to answer the charges. While the initiation of the proceedings and the makeup of the committee were not in literal compliance with the Student Handbook, the record supports the finding that the Office of the Dean of Students was involved in the procedure and that one of the committee members, Dr. Lewis, had served as Associate Dean of Students for many years. Petitioner demonstrated no prejudice resulting from the deviation from literal compliance with the Student Handbook procedures. The record thus supports the court's conclusion that respondent substantially complied with its own guidelines (see Tedeschi v Wagner Coll., 49 NY2d 652, 660 [1980]; Matter of Fernandez v Columbia Univ., 16 AD3d 227 [*2][2005]; Matter of Trahms v Trustees of Columbia Univ. in City of N.Y., 245 AD2d 124 [1997]).

Mitchell H. Rubinstein

April 24, 2011 in Education Law | Permalink | Comments (0) | TrackBack (0)

Saturday, April 23, 2011

Lack of a transcript of a disciplinary arbitration not fatal to confirming the arbitrator’s award

Matter of Jordan v Human Resources Admin. City of New York, 2010 NY Slip Op 08575, Decided on November 16, 2010, Appellate Division, Second Department

The Appellate Division ruled that Jerome E. Jordan failed to establish any grounds for vacating the arbitration award, including his argument that “under the circumstances here, the fact that the arbitration hearing was not transcribed did not provide a basis for vacating the arbitration award.”

N.B. In some instances a contract disciplinary procedure set out in a collective bargaining agreement provides that party may elect to have a transcript of the disciplinary arbitration hearing taken. Typically the cost of making a transcript of the hearing is at the requesting party’s own expense and frequently the CBA requires that the party requesting the transcript provide a copy to the arbitrator and the other party.

In contrast to a disciplinary arbitration, where the arbitrator makes the final determination, Civil Service Law §75 not only requires that a transcript of the hearing be made, it also requires that a transcript of the hearing be provided free of charge to the employee.

Further, a hearing officer or panel submits a report and a recommendation as to the penalty to be imposed to the appointing authority and it is responsibility of the appointing authority to conduct an independent review of the facts before rendering its decision.

In Ligreci v Honors, 162 AD2d 1010, the Appellate Division found that the appointing authority erred by making a determination in a disciplinary action before receiving the transcript of the hearing. Further, the courts have held that the failure to include transcript of the disciplinary hearing in a judicial challenge to the disciplinary determination or penalty imposed bars any “meaningful appellate review.”

Similarly, in a disciplinary action pursuant to, and consistent with, §3020-a of the Education Law, 8 NYCRR 82-1.11(c) provides that the Commissioner of Education is to arrange for “the preparation of a hearing transcript by a competent stenographer and shall compensate the stenographer for the cost of preparing the transcript and copies thereof for the hearing officer, each panel member, the department, the employee and the board.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08575.htm
NYPPL

Disciplinary proceedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules

Disciplinary proceedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules
Gordon v Town of Queensbury, App. Div., 256 AD2d 784

Michael Gordon was terminated from his position as a motor equipment operator by the Town of Queensbury before he completed his probationary period. He challenged the town’s action, contending that the town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission and thus his termination was made “in bad faith.”

Rule XIV.5 of the Warren County Civil Service Commission requires that “a probationer whose services are to be terminated for unsatisfactory performance receive written notice of such termination at least one week prior thereto.”

Here, however, the Appellate Division decided that “the disciplinary provisions” set out in a collective bargaining agreement negotiated pursuant to the Taylor Law trumped the Commission’s rules. In its analysis of the case, the court pointed out that:

1. A county civil service commission has the authority to promulgate rules for the “conditions and extent of probationary service” which [when filed] have the force and effect of law.

2. “A violation of such rules may be sufficient to trigger a trial on the issue of bad faith.”

3. The former employee “bears the burden of presenting competent proof that his or her dismissal was made in bad faith.”

But, the court said, “it is equally true ... that the disciplinary procedures set forth in a collective bargaining agreement may be substituted for statutory procedures, in which case an employee is ‘entitled to no more procedural protections than those expressly afforded him [or her] under the collective bargaining agreement.”

The Appellate Division said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining agent, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.

Also noted in the opinion was the fact that “it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons absent proof that such discharge was for a constitutionally impermissible reason or in violation of statutory, decisional law, or in bad faith.

Since Gordon “failed to tender proof sufficient to raise a triable issue of fact in this regard,” the court decided that no hearing was required concerning the Town’s motivation in discharging him from the position and dismissed the appeal.

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

April 23, 2011 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (0)

Friday, April 22, 2011

Education Law Jobs

School Law Jobs
Job Title Employer Job Location
Director of the Education and Legal Alliance/Assoc. General Counsel California School Boards Association Sacramento, California
Chief Counsel to the School Board School District of Palm Beach County West Palm Beach, Florida
Chief Legal Officer Illinois School District U-46 Elgin, Illinois
School Law Attorney Brannan Legal Search Chicago, Illinois
Labor & Employment Law Attorney Thrun Law Firm, P.C. East Lansing, Michigan
School Attorney Drummond Woodsum Portsmouth, New Hampshire
Education Law Associate Walter & Haverfield LLP Cleveland, Ohio
Education Law Associate Reed Smith LLP Richmond, Virginia
School Board Attorney Chesterfield County Public Schools Chesterfield, Virginia
Hiring? Learn more about our School Law Jobs listings.

 

April 22, 2011 in Lawyer Employment | Permalink | Comments (0)

Thursday, April 21, 2011

Where a collective bargaining agreement sets out a “board agreement to arbitrate,” the arbitrator, rather than the court, is to determine if the grievance is subject to arbitration

Matter of City of Binghamton v Binghamton Police Benevolent Assn., Inc., 2011 NY Slip Op 02109, Appellate Division, Third Department
When the Binghamton chief of police instituted new rules concerning the use of sick leave and subsequently counseled a police officer about an alleged pattern of suspected sick leave abuse and the need to provide a physician’s notes for all future sick leave absences, the Police Benevolent Association filed a grievance alleging a violation of the collective bargaining agreement between the Association and the City. In addition, the Association contended that the new policy constituted “departure from past practices.”

The grievance was denied by both the police chief and a representative of the mayor. The City, in response to the Association demand to submit the grievance to arbitration, filed a petition pursuant to Article 75 of the CPLR seeking a stay of arbitration. Supreme Court denied the petition and the City appealed.

The Appellate Division affirmed the Supreme Court’s determination, noting that the sole issue to be resolved was whether the parties to the CBA agreed to refer disputes in this specific area to arbitration. 

In such situation, said the Appellate Division, courts "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

As the parties' broad agreement to arbitrate provided that "[a]ny grievance or dispute which may arise between the parties involving the application, meaning, or interpretation of this [a]greement," the Appellate Division ruled that the subject matter of the dispute bears a reasonable relationship to the articulated contract provisions and, therefore, it is for an arbitrator to decide in the first instance whether the precise scope of those provisions covers the issues presented in the Association’s grievance.

The decision is posted on the Internet at: 
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

April 21, 2011 in Arbitration Law, Public Sector Labor Law | Permalink | Comments (1)

Termination pay and other compensation paid in anticipation of an employee’s retirement excluded in determining the individual’s final average salary

Matter of Thompson v New York State Teachers' Retirement Sys., 2010 NY Slip Op 08670, November 24, 2010, Appellate Division, Third Department

James R. Thompson was employed as a principal in the LeRoy Central School District. In accordance with the relevant collective bargaining agreement between the school district and the LeRoy Administrators' Association, Thompson was to receive 3.5% annual pay increases through the 2005-2006 school year.

The CBA also offered a retirement incentive wherein an administrator who retired immediately after becoming eligible to do so without penalty would receive a lump-sum payment of $20,750.

Although Thompson would have qualified for the incentive had he retired during the 2004-2005 school year, continued in his position. However, the school district and association executed a memorandum of understanding in 2005 that granted large annual raises to Thompson and another administrator nearing retirement age in the 2005-2006 and 2006-2007 school years.

When Thompson retired in 2007 retirement, the New York State Teachers’ Retirement System excluded his 2005-2006 and 2006-2007 salary increases when calculating his retirement benefit. Thompson sued but Supreme Court dismissed his petition.

The Appellate Division affirmed Supreme Court’s ruling, holding that NYSTRS had “appropriately calculated his final average salary using ‘the average regular compensation earned . . . during the three years of actual service immediately preceding his date of retirement.’”

The court explained that in order to prevent the artificial inflation of a member’s final average salary in determining the individual’s retirement allowance, Education Law §501 [11] [b], (see also 21 NYCRR 5001.1 [d]; 5003.1 [a]) requires NYSTRS to exclude any form of termination pay or compensation otherwise paid in anticipation of retirement.

As the 2005 memorandum of understanding stated that it was intended to "provide administrators with an incentive to continue [working] beyond retirement eligibility," and granted exceptional salary increases to Thompson [and other school administrators], the Appellate Division held that NYSTRS “rationally concluded from the above evidence that the disproportionate increases in his salary were made in anticipation of retirement.”

The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08670.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

April 21, 2011 in Employee Benefits Law, Public Sector Employment Law | Permalink | Comments (0)

Wednesday, April 20, 2011

A statutory general power of appointment implies a power to terminate the services of the appointee

Matter of City Council of City of Mount Vernon v Batra, 2011 NY Slip Op 02664, Appellate Division, Second Department

Ravi Batra, former counsel to the Office of the Mayor of the City of Mount Vernon, contended that he was unlawfully terminated from his position, arguing that his appointment pursuant to Section 66 of the Mount Vernon City Charter was irrevocable and not at the pleasure of the mayor.

The Appellate Division, sustaining Supreme Court’s dismissal of Barta’s petition, held that “Where, as here, the power of appointment is conferred in general terms and without restriction, the right to remove the appointee is within the discretion or at the pleasure of the appointing power.”

The decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02664.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

April 20, 2011 in Public Sector Employment Law | Permalink | Comments (0)