On December 28, 2015, Governor Cuomo signed a bill repealing Civil Service Law § 75-b(2)(b).  This has a significant effect on the anti-retaliation provisions of New York’s “whistle blower” protection statute for public employees who report to a governmental body either (a) violations of a law, rule or regulation, or (b) something which an employee reasonably believes to be “improper governmental action." Civil Service Law § 75-b protects public employees who are whistle blowers against retaliation by public employers (which includes the State of New York, counties, cities, towns, villages, and school districts).  As originally enacted, § 75-b(2)(b) (now repealed) required that a public employee, in order to invoke the anti-retaliation protection, first “shall have made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action unless there is imminent and serious danger to public health or safety.” With the repeal, there now appears to be no requirement that the employee report the issue internally before taking it to another governmental body.  While no doubt well-intentioned, the repeal may very well empower disgruntled employees to pepper regulatory and criminal authorities with complaints of alleged misconduct. In addition to the fact that public employers should generally be aware of this change, public employers should also examine and review their existing whistle blower policies to determine if any revisions should be made.

In the classic 1980's comedy "Say Anything," the iconic high school senior Lloyd Dobler articulates his career goals as follows: "I don't want to sell anything, buy anything, or process anything as a career.  I don't want to sell anything bought or processed, or buy anything sold or processed, or process anything sold, bought, or processed, or repair anything sold, bought, or processed.  You know, as a career, I don't want to do that." A cursory Google search reveals that this 25 year old quote still resonates with much affection.  But what may be deemed a charming lack of ambition from a teenaged movie character can be the death knell of a First Amendment case brought by a plaintiff who turns this quote into a veritable workplace mantra. Take for example the recent case of Alves v. Board of Regents of the University System of Georgia.  In Alves, five psychologists of the Georgia State University Counseling Center submitted a written memorandum to the Counseling Center's director and the director's supervisor, criticizing the director's leadership and management, which they claimed "created an unstable work environment" and prevented the staff from being effective in their work.  The memorandum set forth five areas of concern, including deficiencies in management, witness tampering, and selective treatment of staff based on race. A short time later, the director implemented a reduction in force affecting all the staff psychologists, all but one of whom were signatories to the memorandum, and outsourced their services at allegedly lower costs.  The five psychologists who had signed the memorandum filed a First Amendment retaliation suit, claiming that they were fired for the "speech" contained in the memorandum, which they contended was made by them as ordinary citizens on matters of public concern. The defendants moved for summary judgment dismissing the complaint, arguing that under the Supreme Court's decision in Garcetti v. Ceballos, the memorandum was written about matters of only personal interest pursuant to the plaintiffs' official duties as employees, rather than about matters of public concern.  The lower court agreed with the defendants and dismissed the complaint, which resulted in an appeal to the Eleventh Circuit Court of Appeals. On appeal, the five psychologists employed a Dobleresque view of their job responsibilities, arguing that raising ethical issues and protesting alleged supervisory incompetence were simply not within the ordinary ambit of their job duties.  In other words, according to the plaintiffs, their job was only to provide counseling services to students -- not to "process" or "repair" anything within the broader universe of their workplace.  The Eleventh Circuit disagreed and affirmed the dismissal of the plaintiffs' complaint.  The Court found that the plaintiffs' protests were in furtherance of their ability to perform their job responsibilities with the goal of ending perceived mismanagement.  The Court determined that these were matters of personal interest rather than public concern, and therefore, were not protected by the First Amendment. The long and short of Alves and the cases that follow similar reasoning is that while a public employee may say anything in a lawsuit to try to limit their true job responsibilities, lack of ambition, whether real or feigned, is rewarded with applause only in the movies.

Recently, the United States Supreme Court commenced a new session with a docket full of interesting cases.  One case, Friedrichs v. California Teachers Association, is of particular significance to those in the field of public sector labor law.  A decision in favor of the plaintiffs has the potential to affect the implementation and regulation of union agency shop fees nationwide. The case was originally brought by a California public school teacher, Rebecca Friedrichs, who argued that the mandatory payment of agency shop fees violated her First Amendment right to free association and free speech.  Currently, public sector employees in New York who choose not to join the union that has been certified as their collective bargaining representative are required under the Taylor Law to pay fees associated with the union’s collective bargaining and contract administration costs.  These fees are called “agency shop fees.” Agency shop fees may not include any political costs associated with running the union.  However, the plaintiffs in Friedrichs argue that it is difficult to separate the political costs associated with public employee unions from the collective bargaining and contract administration costs.  In their Petition for a Writ of Certiorari to the Supreme Court, the plaintiffs wrote:  “In this era of broken municipal budgets and a national crisis in public education, it is difficult to imagine more politically charged issues than how much money cash-strapped local governments should devote to public employees . . . .” Similar to the issues presented in some of the other cases on the docket this session, the issue of agency shop fees in the public sector has recently been before the Supreme Court.  In the 2014 case of Harris v. Quinn, the Court addressed the issue of whether the First Amendment prohibits the collection of agency shop fees from Rehabilitation Program Personal Assistants employed by the State of Illinois who choose not to join or support the union.  The facts in Harris led to a narrow opinion by the Court that the First Amendment rights of the Personal Assistants would be violated by the collection of agency shop fees because the customers (recipients of home care services), rather than the State of Illinois, controlled most aspects of the employment relationship and the scope of the collective bargaining provided by the union on behalf of the Personal Assistants was extremely limited.  The Court also noted that the traditional “free-rider” argument that had previously supported agency shop fees in the past was weakening in light of First Amendment scrutiny. The defendants in Harris and in Friedrichs both rely on the Supreme Court’s 1977 decision in Abood v. Detroit Board of Education.  In Abood, the Supreme Court held that although it was unconstitutional to collect fees from non-member employees to support political or ideological causes, unions have the right to require employees within the bargaining unit who choose not to become union members to contribute to the cost of collective bargaining activities.  Notably, unions are also required to provide some sort of notice to all members of the bargaining unit as to what the fees are being used for, in an effort to allow time for any objections by non-member employees to their agency shop fees being contributed to political causes. What does this mean for public sector employers in New York?  The plaintiffs in Friedrichs are seeking to overrule the precedent set in Abood by either abolishing agency shop fees, or, in the alternative, by creating a system whereby non-member employees must opt in (rather than opt out) of the payment of such fees.  Section 208.3 of the Taylor Law provides that each public employee union in New York is entitled to have deducted from the wage or salary of non-member employees within the bargaining unit the amount equivalent to the dues levied by the union against member employees.  Section 208.3 also requires, as a condition of this agency shop fee deduction, that the union must establish and maintain “a procedure providing for the refund for any employee demanding the return of any part of an agency shop fee deduction which represents the employee’s pro rata share of expenditures by the organization in aid of activities or causes of a political or ideological nature only incidentally related to terms and conditions of employment.”  If the Supreme Court rules in favor of the plaintiffs, the constitutionality of this provision of the Taylor Law could also be subject to challenge. In the meantime, stay tuned for further developments regarding this case, and be on the lookout for oral arguments in the next few months.

As many school districts are aware, it is not uncommon for a district to receive a request to disclose allegedly relevant student records to a tenured teacher facing disciplinary charges in the context of an Education Law Section 3020-a proceeding.  However, as school districts are also aware, the Family Educational Rights and Privacy Act (FERPA) protects the privacy of student educational records and prohibits the disclosure of such records except in limited circumstances.  Thus, the teacher’s right to access evidence relevant to his/her defense must be balanced against a student’s right to privacy in his/her educational records.  The decision recently issued by the Appellate Division, Fourth Department, in In re Watertown City School District v. Anonymous is a good reminder to school districts that a teacher's right to access student records in a disciplinary proceeding is not absolute. At issue in the Watertown City School District case was whether a tenured teacher could compel the school district to disclose student records that the teacher claimed were “highly relevant” and “necessary” to the teacher’s defense to disciplinary charges.  The teacher served on the district a broad subpoena seeking the production of all student records for all student witnesses who would be testifying against the teacher during the disciplinary hearing.  The sole limitation on the teacher’s request was that records prior to seventh grade were not requested; all other student records were requested under the subpoena. The district objected that the student records sought were irrelevant and protected under FERPA, and ultimately brought a proceeding in New York State Supreme Court to quash the subpoena.  The Supreme Court disagreed with the district, and ordered the district to produce all of the records requested under the subpoena. However, on appeal, the Appellate Division reversed the lower court's ruling, and granted the school district's petition to quash the subpoena.  The Appellate Division explained that the teacher was required to come forward with a factual basis establishing the relevance of the documents sought.  The Court held that the teacher failed to meet this burden, principally because the allegations of misconduct against the teacher involved activities outside the classroom and the teacher did not provide any specific information regarding how the students' educational records were relevant to her defense. In light of the Appellate Division’s ruling in the Watertown City School District case, school districts can breathe at least a small sigh of relief knowing a tenured teacher facing disciplinary charges cannot gain unfettered access to student records in search of evidence to use in his/her defense.  At a minimum, the teacher must establish a factual basis demonstrating that the student records sought are relevant and reasonably related to the teacher’s defense.

On May 6, 2014, in Santer v. Board of Education of East Meadow Union Free School District, the New York Court of Appeals held that a school district did not violate the First Amendment by disciplining teachers who participated in a picketing demonstration, because the teachers' right to engage in constitutionally protected speech was outweighed by the school district's legitimate interests in protecting the health and safety of students and in maintaining effective operations. The picketing activity that resulted in the discipline of the teachers occurred on March 2, 2007.  The teachers had, for over two years prior to that date, engaged in weekly protests (including picketing) to express their dissatisfaction with the lack of progress in reaching a new collective bargaining agreement with the school district.  On March 2, 2007, due to inclement weather, the teachers decided to park their cars on the two-way street in front of the middle school and place picketing signs in their car windows instead of walking along the middle school's sidewalk holding their signs.  Because of the manner in which the teachers were parked, parents dropping off their children to school were unable to pull directly up to the curb and instead had to stop their cars in the middle of the street to drop off their children.  As a result, traffic became congested in both directions and students had to cross through traffic in the rain to reach the school. On March 16, 2007, the school district commenced disciplinary proceedings under Education Law Section 3020-a against the teachers who had participated in the picketing activity on March 2, alleging that the teachers created a health and safety risk by purposely parking their cars in a manner that precluded students from being dropped off at the curb.  The teachers were found guilty of the alleged misconduct after their hearings and were assessed fines as disciplinary penalties. The teachers filed petitions in New York State Supreme Court to vacate the disciplinary decisions.  The Supreme Court denied the petitions.  The Appellate Division reversed the lower court's decision and vacated the disciplinary decisions on the ground that the school district failed to meet its burden of showing that the teachers' exercise of their First Amendment rights constituted such a threat to the school's effective operations that the imposition of discipline was justified.  The Appellate Division also held that the discipline imposed on the teachers would likely have a chilling effect on the teachers' speech regarding an important matter of public concern. The Court of Appeals reversed the Appellate Division, and reinstated the disciplinary penalties imposed on the teachers.  The Court of Appeals recognized that the teachers' picketing activity was a form of protected speech that related to a matter of public concern, but found that the school district had satisfied its burden of showing that the teachers' conduct posed a significant risk to the health and safety of students.  The Court of Appeals noted that the school district was not required to prove that a student was actually injured as a result of the teachers' picketing activity in order to justify its discipline of the teachers.  The potential risk to student safety was sufficient to justify the discipline.  The Court of Appeals also found it significant that the teachers had engaged in picketing activity prior to March 2, 2007, and after March 2, 2007, without being subjected to any discipline.  The Court of Appeals determined that this demonstrated that the school district's disciplinary actions were not motivated by the content of the teachers' protected speech. Despite the Court of Appeals' decision in the East Meadow case, school districts and other public employers should continue to proceed cautiously if they are considering disciplinary action against an employee for conduct that could constitute protected speech under the First Amendment.  Disciplinary proceedings should be commenced in such instances only if it can be demonstrated that the employee's conduct constituted such a threat to the employer's effective operations that the imposition of discipline is justified.

On December 12, 2013, the New York Court of Appeals issued a decision in Kolbe v. Tibbetts, in which the Court addressed whether the Newfane Central School District could unilaterally alter the health insurance benefits of certain retirees of the District.  The Court held that the retirees had a vested right to the same health insurance coverage until they turned 70 years of age that was in place under the collective bargaining agreements ("CBAs") that were in effect at the time of their retirement.  The Court also rejected the District's contention that it was entitled to change retiree health insurance benefits under the New York Insurance Moratorium Law, holding that the Insurance Moratorium Law does not apply to health insurance benefits that have vested under CBAs. While they were employed by the District, the plaintiffs were part of a non-instructional bargaining unit represented by the CSEA.  The CBAs in effect at the time of their retirement provided for certain health insurance benefits, including a two-tiered prescription drug coverage co-pay system and an option to participate in a flexible spending benefit program.  Each of the plaintiffs’ CBAs contained an identical section related to health insurance benefits for retirees, stating that “[t]he coverage provided shall be the coverage which is in effect for the unit at such time as the employee retires” and “full-time employees who retire . . . shall be entitled to receive credit toward group health insurance premiums” until they reach age 70.  In January 2010, after each of the plaintiffs had retired, the District executed a successor CBA which implemented changes to the co-pay system and flexible spending benefit program, and the District informed the retirees that those changes for current bargaining unit employees would also be applied to the retirees. The plaintiffs commenced an action against the District alleging breach of contract and seeking declaratory relief.  The plaintiffs moved for summary judgment on their claims and the District cross-moved for summary judgment, arguing, in part, that its modification to the retirees’ health insurance benefits was permitted under the Insurance Moratorium Law.  The Supreme Court granted the plaintiffs’ motion for summary judgment.  The Appellate Division reversed the Supreme Court's decision (with two judges dissenting), and granted the District's cross-motion for summary judgment. The Court of Appeals reversed the decision of the Appellate Division.  Although the Court recognized that contractual obligations do not ordinarily survive beyond the termination of a collective bargaining agreement, the Court held that “[r]ights which accrued or vested under the agreement will, as a general rule, survive termination of the agreement.”  In considering the specific language set forth in the CBAs, the Court held that the plaintiffs had a vested right “to the ‘same coverage’ during retirement as they had when they retired, until they reach 70.” The District argued that it was permitted under the Insurance Moratorium Law to modify the retirees' health insurance benefits because a corresponding modification was made to the health insurance benefits for active employees.  The Insurance Moratorium Law provides, in relevant part, that a school district is prohibited from “diminishing the health insurance benefits provided to retirees . . . unless a corresponding diminution of benefits or contributions is effected . . . from the corresponding group of active employees for such retirees.”  The Court held that the Insurance Moratorium Law only applies in those instances where a school district attempts to change health insurance benefits that were voluntarily conferred, not where the benefits were “negotiated in the collective bargaining context.”  Accordingly, the Court held that the Insurance Moratorium Law did not permit the District to reduce retiree health insurance benefits simply because it negotiated a corresponding change to the health insurance benefits of active employees. In light of the Court’s decision in Kolbe v. Tibbetts, school districts and municipalities should make sure to review the retiree health insurance provisions in their CBAs before making a decision that could impact the health insurance benefits of retirees, and should consult with their legal counsel before implementing changes to retiree health insurance benefits.

A recent decision issued by the Appellate Division, Second Department, in Matter of Board of Education of Hauppauge Union Free School District v. Hogan, provides a valuable reminder to school districts and other public employers that an arbitrator’s interlocutory ruling in a disciplinary proceeding against an employee may not really be an interlocutory ruling at all, and in some circumstances, may be subject to immediate judicial review.  The decision makes clear, at least under the circumstances of that case, that a court has authority to review an “interlocutory award” which dismisses a misconduct charge in a disciplinary proceeding commenced pursuant to Education Law Section 3020-a.  In justifying its review, the Court distinguished between an arbitrator’s interlocutory ruling on a procedural matter, which is generally not reviewable, and the dismissal of a misconduct charge, which it deemed to be “a final determination subject to review under CPLR 7511.” In 2006, Hogan (the individual who was the subject of the disciplinary proceeding) submitted an application to the school district seeking employment as a physical education teacher.  In 2010, more than three years after he submitted the application, the school district preferred charges against him alleging that Hogan had knowingly failed to disclose on his application that he had resigned from a previous probationary teaching position after being confronted with allegations that he had engaged in corporal punishment and being advised that he would not receive tenure. The first disciplinary charge, which formed the subject matter of the litigation, alleged misconduct in the knowing presentation for filing of a false and incomplete application.  The school district alleged that such conduct was in violation of Penal Law Section 175.30 -- Offering a False Instrument for Filing in the Second Degree.  Hogan filed a pre-hearing motion to dismiss the first charge, maintaining that it was time barred by the three-year limitations period contained in Education Law Section 3020-a.  The arbitrator granted the motion and dismissed the charge, finding that the school district had not pled sufficient facts to establish that Hogan had violated the Penal Law, and thus, could not invoke the exception to the three-year limitations period applicable when the charged misconduct constitutes a crime. The school district immediately commenced a proceeding in New York State Supreme Court pursuant to CPLR Article 75 and Education Law Section 3020-a, seeking to vacate the arbitrator’s decision to dismiss the disciplinary charge as arbitrary and capricious.  Hogan argued that the arbitrator's decision was an "interlocutory award" that was not subject to immediate appeal.  The Supreme Court rejected Hogan's argument, granted the petition, and restored the disciplinary charge. The Second Department affirmed.  It held that the disciplinary charge at issue was the only one preferred which constituted misconduct, and if dismissed, would prevent the school district from “adducing evidence in support of the alleged misconduct at the hearing.”  As such, the arbitrator’s award was deemed to be final and reviewable. In addition to finding the arbitrator's decision reviewable, the Court affirmed reinstatement of the disciplinary charge.  It noted that an arbitrator’s determination is subject to greater judicial scrutiny when the obligation to arbitrate arises by statute, and that an award in a compulsory arbitration such as an Education Law Section 3020-a hearing must have evidentiary support.  The Court held that the arbitrator’s determination was arbitrary and capricious, and that the facts alleged by the school district, if proven, would constitute the crime of offering a false instrument for filing in the second degree.

In a recent decision of statewide applicability to public employers with unionized members of the Police and Fire Retirement System (“PFRS”), the New York Court of Appeals (“Court”) addressed the issue of whether the City of Yonkers’ refusal to pay or reimburse new employees for their statutorily-required Tier V pension contributions was arbitrable.  In City of Yonkers v. Yonkers Fire Fighters, the Court affirmed the decision of the Appellate Division, Second Department (which had reversed the lower court’s decision), and held that the dispute was not arbitrable, thereby affirming a permanent stay of arbitration.  The case will likely have positive implications for similarly-situated public employers across the state.  The City of Yonkers ("City") was represented by Bond, Schoeneck & King in the litigation.

The dispute arose in connection with the 2009 enactment of Article 22 of New York’s Retirement and Social Security Law (“Tier V”).  Among other changes, Tier V provides that those who join the PFRS on or after January 10, 2010 must contribute 3% of their salary towards the retirement plan in which they are enrolled.

Prior to the enactment of Tier V, the City and the Yonkers Fire Fighters (the “Union”) were parties to a collective bargaining agreement (“CBA”) which expired on June 30, 2009.  Like many other firefighter and police collective bargaining agreements throughout the state, the CBA required the City to provide a “non-contributory” pension/retirement plan to its firefighters.

In late 2009, the City hired several firefighters who, because of a “gap” in the law, had the option of joining the PFRS as either members of Tier III or Tier V – both contributory (3%) tiers.  In an attempt to apply the terms of the expired CBA to relieve its Tier V members of the statutorily-required 3% member contribution, the Union filed a grievance and sought arbitration based upon the contractual obligation to provide a non-contributory plan.

The Union relied upon an exception (Retirement and Social Security Law, Article 22, Section 8) in the Tier V statute which provides that members of the PFRS need not join the contributory Tier V if there is an alternative (non-contributory) retirement plan available to them under a CBA “that is in effect on the effective date of Tier V.”  This provision gives new members of the PFRS a means by which they could avoid Tier V and its 3% contributions and join an existing non-contributory plan.  The Union sought to use the “Triborough” provisions of the Taylor Law, which require that the terms of an expired agreement continue until a new agreement is reached, to extend this exception to its members hired in late 2009 on the theory that its CBA, which expired on June 30, 2009, was nonetheless still “in effect.”

Finding that the Union’s reliance on “Triborough” applying to the statutory Section 8 exception was misguided and not the Legislature’s intent, the Court found that the CBA in question expired on June 30, 2009 and, therefore, was not “in effect” on January 10, 2010, the effective date of Tier V.  The Court adopted a position taken by the City and determined that the Legislature intended to honor only agreements providing for non-contributory status that had not expired at the time the statute became effective.

The Union also grieved, and attempted to arbitrate, an alternative argument that even if its new members could not join Tier V as non-contributing members, then, under the CBA, the City should pay (or potentially reimburse) its new members’ 3% pension contributions.  The Court, however, found that the arbitration sought by the Union was barred as an impermissible negotiation of pension benefits.  The Court accepted the City’s argument that Section 201(4) of the Civil Service Law and Section 470 of the Retirement and Social Security Law prohibit the arbitration of this dispute.  While New York generally favors arbitration, an issue is not proper for arbitration when the subject matter of the dispute violates statutory law, as was the case here.  Among other things, Sections 201(4) and 470 state that the benefits provided by a public retirement plan are prohibited subjects of collective bargaining.  In this case, arbitration of the relevant dispute would be improper, as these statutes clearly bar the negotiation of benefits provided by a public retirement system such as the PFRS 3% contribution.

Finally, the Court rejected the Union’s remaining contention that the Section 8 exception runs afoul of the Contract Clause of the United States Constitution, which prohibits the retroactive impairment of contracts after their inception.

This 4-2 decision of the Court could impact any public employer that employs police and/or firefighter members of Tier V, and who has a collective bargaining agreement that addresses non-contributory retirement plans.  However, because of the many complex legal issues involved, it is recommended that these matters, as well as those involving questions surrounding the applicability of this decision to Tier V, be reviewed with labor counsel.

Civil Service Law Section 115, entitled "Policy of the state," provides that "it is hereby declared to be the policy of the state to provide equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of quality of work demonstrated in service."  Is this "policy" enforceable in court?  That depends upon which court you ask.

In 2007, in Matter of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO v. State of New York Unified Court System, the Third Department Appellate Division cited prior court decisions and stated that "the courts have repeatedly held that [Civil Service Law Section 115] merely enunciates a policy and confers no jurisdiction on a court to enforce such policy."  (emphasis in original).

However, on January 22, 2013, the First Department Appellate Division held otherwise.  A divided Court held, in Subway Surface Supervisors Association v. New York City Transit Authority, that:  (1) there is no impediment to judicial enforcement of Civil Service Law Section 115; and (2) the fact that a union negotiated a salary schedule does not preclude the union from challenging that salary schedule under Civil Service Law Section 115.

The NYC Transit Authority case involved the Transit Authority's Station Supervisor title, which has two assignment levels (SS-I and SS-II).  The skill and testing requirements for the positions are the same; however, the functions and duties of each position are different.  Thus, the SS-II position has always been better compensated.  Each assignment level is represented by a different union, and each union negotiated a multi-year collective bargaining agreement covering the wages and benefits of the positions within its bargaining unit.

The union representing the employees in the SS-I position alleged that the Transit Authority had shifted work over time between the assignment levels, to the point where there was no significant distinction between the work performed by the employees at each level.  The union filed a lawsuit against the Transit Authority demanding "equal pay for equal work" under Civil Service Law Section 115, as well as the State and Federal Constitutions.

The Transit Authority filed a motion to dismiss the claims, arguing that the union should be estopped from challenging salary levels that it had negotiated.  The Transit Authority also argued that the union's claims related to terms and conditions of employment required to be negotiated in good faith through collective bargaining under the Taylor Law, and that the claims therefore fell within the exclusive jurisdiction of the Public Employment Relations Board.

Affirming the lower court's denial of the motion to dismiss, the First Department majority wrote that "the issue here is not whether the union negotiated an unfavorable deal but whether the [Transit Authority] has violated public policy.  Such disputes are amenable to review by the courts."  The majority also rejected the Third Department's 2007 opinion that the courts do not have jurisdiction to enforce Civil Service Law Section 115.

The dissent agreed with the Third Department, and rejected the notion that a union could assert a viable equal protection claim after negotiating a salary schedule through collective bargaining.  The dissent also noted that Civil Service Law Section 115 not only stated a policy of "equal pay for equal work," but also a policy of regular pay increases based on ability, output, and quality.  The dissent pointed out that the majority's reasoning would essentially create a cause of action in court based on allegations that an employee had not received regular pay increases, which could not have been intended by the Legislature in stating this policy.

The First Department's recent decision creates a split in the appellate courts regarding the enforceability of the policy enunciated in Civil Service Law Section 115.  It remains to be seen whether the Court of Appeals will be asked to resolve this issue.

Although public employers may be aware of their obligation to provide certain types of employees with an opportunity for a hearing prior to imposing discipline (such as a written reprimand), the line between a non-disciplinary counseling memorandum and a disciplinary reprimand is not always clear.  The New York State Court of Appeals' recent decision in Matter of Michael D’Angelo v Nicholas Scoppetta serves as an important reminder that the term “reprimand” may be interpreted more broadly than public employers anticipate.

In the D'Angelo case, the Court of Appeals held that a letter informing a firefighter that he had violated the Fire Department’s Code of Conduct and Equal Employment Opportunity (“EEO”) Policy, following a detailed and lengthy investigation, constituted a “reprimand” that could not be placed in his file without affording him the opportunity for a hearing and other due process rights.  The firefighter was accused of yelling a racial epithet at an emergency medical technician, also employed by the Fire Department, while responding to a motor vehicle accident.  The EMT filed a police report, notified his supervisor of the incident, and complained to the department’s EEO office.  After a two-year internal investigation, a finding was made that the firefighter had used the racial slur as alleged.  A final report summarizing the findings and recommendations resulting from the investigation was issued, and the report was approved by the Commissioner of the Fire Department.

The Assistant Commissioner of the Fire Department then sent the firefighter a letter regarding the determination that he had “exercised unprofessional conduct and made an offensive racial statement.”  The letter instructed him to read and sign an attached Advisory Memorandum and informed him that he would receive additional EEO training in the future.  The Assistant Commissioner characterized the letter as a “formal Notice of Disposition of the filed Complaint” which would be placed in the firefighter's permanent file.

The firefighter objected to the placement of the letter in his file without the opportunity for a hearing and commenced an Article 78 proceeding to challenge the Fire Department's placement of the letter in his file.  The trial court annulled the determination and expunged the letter from the firefighter's file, holding that the letter was a disciplinary reprimand and, therefore, the firefighter was entitled to a formal hearing and other due process safeguards.  The decision was subsequently affirmed by both the Appellate Division and the Court of Appeals.

In reaching its decision, the Court of Appeals focused on several key facts to distinguish the letter issued to the firefighter from counseling letters issued to teachers which were found to be non-disciplinary “critical evaluations” in a 1981 Court of Appeals decision.  Specifically, the Court noted that the letters to the teachers, although “sharply critical,” were not intended to punish the teachers, but rather were intended to identify relatively minor breaches of school policy and to encourage future compliance.  In contrast, the Court held that the determination that the firefighter had used a racial epithet could not be considered a “minor breach” of the EEO policy.  In fact, the Fire Department conceded during oral argument that it was serious misconduct which could negatively affect the firefighter’s eligibility for future promotion.  Further, the requirement that the firefighter participate in additional EEO training was determined by the Court to be a form of discipline.

Additionally, the letters to the teachers in the 1981 case were sent by the individual school administrator, who was the teachers’ direct supervisor.  In contrast, the letter in the D’Angelo case was sent to the firefighter following a two-year formal investigation conducted by the Fire Department’s EEO office with approval from both the Fire Department’s Assistant Commissioner and Commissioner.

In light of these specific facts, the Court of Appeals concluded that the letter was a formal disciplinary reprimand, and that the firefighter was entitled to a hearing to protect his due process rights prior to placement of the letter in his permanent file.

The D’Angelo decision serves as a good reminder to public employers to consider the manner in which employee performance and conduct problems are addressed, and to be prepared to follow applicable due process requirements when appropriate.

The New York Court of Appeals recently found that a municipality’s unique and local interest in maintaining strong disciplinary authority over its police force outweighs the policy of the State to support public employees’ collective bargaining rights.  This means that critical issues involving the manner in which police disciplinary investigations, charges, and hearings are conducted may not be subject to either the negotiation process or, perhaps more importantly, interest arbitration.  These matters are prohibited subjects of bargaining.

In Town of Wallkill v. Civil Service Employees Association, which was decided on October 25, 2012, the Court of Appeals upheld a local law passed by the Town of Wallkill in 2007 under authority provided by New York Town Law Section 155.  The local law gave the Town Board the power to make a final determination on police disciplinary charges and to impose a disciplinary penalty.  The local law was adopted without the agreement of the Town of Wallkill Police Officers' Benevolent Association ("PBA").  The PBA preferred to maintain the neutral arbitrator disciplinary process which had been in its collective bargaining agreement with the Town since 1995.

The Court of Appeals found its 2006 decision in Matter of Patrolmen’s Benevolent Association of City of New York v. New York State Public Employment Relations Board to be dispositive in the Town of Wallkill case.  In Matter of Patrolmen’s Benevolent Association, the Court of Appeals held that "police discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials.”  Prior to Town of Wallkill, the Court of Appeals' 2006 decision had been mainly applied to special State law disciplinary constructs that pre-dated the enactment of New York Civil Service Law Sections 75 and 76 -- the general statutory mechanism for public employee (including police officer) discipline.

In Town of Wallkill, however, the Court of Appeals utilized its rationale and policy from Matter of Patrolmen’s Benevolent Association, as well as statutory language found in Civil Service Law Section 76(4), to hold that New York Town Law Section 155, a general State law that was enacted prior to Civil Service Law Sections 75 and 76, gives towns "the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department."

Thus, where, as in Town of Wallkill, a town enacts a local law which sets forth disciplinary procedures for members of its police force, such enactment can take place without negotiation with the local union and/or without regard to procedures which may already exist in a collective bargaining agreement.  A question can now be raised as to whether the rationale of the Court of Appeals’ decision in Town of Wallkill can also be applied to many New York State villages, as New York Village Law Section 8-804 is nearly identical, in relevant part, to New York Town Law Section 155.

On September 10, 2012, the U.S. Court of Appeals for the Second Circuit reversed a 2010 District Court decision and rejected a claim by a terminated public school district employee that she was subjected to retaliation for engaging in protected speech under the First Amendment to the U.S. Constitution.  In Ross v. Lichtenfeld, the Second Circuit held that the employee's complaints upon which she based her retaliation claim were not protected by the First Amendment, and determined that the school district's superintendent was entitled to summary judgment.

Risa Ross was a payroll clerk typist for the Katonah-Lewisboro Union Free School District.  Her duties included processing the school district's payroll, transmitting direct deposits, mailing checks, and notifying appropriate personnel of payroll mistakes.  Between 2003 and 2006, Ross met with the school district's superintendent numerous times to express concern about payments that she believed to be improper.

In 2006, Ross was suspended with pay by the school district after it was discovered that Ross had failed to disclose on her employment application that she had been employed by three other school districts and had been discharged from her employment at each of those three school districts.  During her suspension, Ross wrote to members of the board of education regarding the concerns she had previously expressed to the school district's superintendent about financial malfeasance, and her belief that she had been suspended in retaliation for raising those concerns.  In those letters, Ross stated that, although she was an employee of the school district, she was writing on a "personal note" to express her frustration with the school district's administration.

The board initiated a disciplinary hearing.  The hearing officer found that Ross had knowingly made false statements on her employment application, and recommended that her employment be terminated.  The board then voted unanimously to terminate Ross' employment.

Ross filed four claims against the superintendent, including a claim that she was discharged in retaliation for exercising her First Amendment rights.  The District Court granted the superintendent's motion for summary judgment on every claim except the First Amendment retaliation claim, which it determined should proceed to trial.

The superintendent subsequently appealed the District Court's denial of summary judgment with respect to the First Amendment retaliation claim.  In its decision, the Second Circuit cited well-established precedent that a public employee speaking "as a citizen . . . on a matter of public concern" is entitled to First Amendment protection for that speech.  However, a public employee speaking pursuant to his or her official duties -- and not as a private citizen -- is not entitled to First Amendment protection for that speech, even if the employee's speech is a matter of public concern.  In determining whether a public employee's speech is pursuant to his or her official duties, courts examine the nature of the employee's job responsibilities, the nature of the speech, and the relationship between the two.

Ross argued, among other things, that her letters to board of education members were sent as a private citizen because she specifically stated in those letters that she was writing on a "personal note" rather than as an employee of the school district.  The Second Circuit rejected this argument, holding that "an employee's characterization of her own speech is not dispositive."  The Second Circuit also rejected Ross' other arguments, and held that Ross' concerns about improper payments and/or financial malfeasance were raised pursuant to her job duties as a payroll clerk typist.

Accordingly, the Second Circuit reversed the District Court's decision and determined that the superintendent was entitled to summary judgment on Ross' First Amendment retaliation claim.  In so holding, the Second Circuit reinforced well-established principles of what constitutes protected free speech by public employees.