11 Temmuz 2012 Çarşamba
Seeking a court order to compel a public officer to perform his or her duty
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10 Temmuz 2012 Salı
8 Temmuz 2012 Pazar
Creditable medical evidence trumps presumption that a disease of the heart was incurred in the performance of police officer duties
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Creditable medical evidence trumps presumption that adisease of the heart was incurred in the performance of police officer dutiesGoodacre v Kelly, 2012 NY Slip Op 05096, Appellate Division,First Department
Supreme Court, granted the Article 78 petition filed by a New York City policeofficer, Charles Goodacre, seeking, among other things, to annul thedetermination by the Trustees of the Retirement System denying his applicationfor accident disability retirement (ADR) benefits to which he claimed he wasentitled pursuant to General Municipal Law §207-k (the Heart Bill)*. Although Supreme Court found that the officer was“entitled to such benefits as a matter of law,” the Appellate Division reversedthe lower courts ruling.
§207-k sets out the rebuttable presumption thata police officer or firefighter suffering an impairment of health “causedby diseases of the heart, resulting in total or partial disability or death …who successfully passed a physical examination on entry into the service …which examination failed to reveal any evidence of such condition, shall bepresumptive evidence that it was incurred in the performance and discharge ofduty….” The presumption may be rebutted by competent evidence to the contrary.
Citing Borenstein v New York City Employees' RetirementSystem, 88 NY2d 756, the Appellate Division said that Supreme Court “exceededthe scope of its review,” which is to determine “whether ‘some credibleevidence’ supported the Medical Board's determination as to disability.”
In this instance Supreme Court concluded, “contrary tofindings of the Medical Board,” that although there were conflictingsubmissions, as a matter of law, Goodacre’s hypertension “… constituted astress-related condition warranting ADR benefits.”
Such a determination, however, “was the sole province of theMedical Board and the Board of Trustees, not the court.” The Board and theTrustees were to resolve conflicts in the medical evidence. Having reviewed allof the medical reports and, in its most recent decision, recognizing theconflicting evidence, the Medical Board determined that although Goodacre hadhypertensive heart disease, he did not have a stress related disability becausethere was insufficient evidence…. "
Accordingly, the Appellate Division ruled that the statutorypresumption of §207-k was overcome by this credible evidence of Goodacre'sdisabling congenital heart condition.
Contrary to Goodacre's contention, and the Supreme Court'sconclusion, the Appellate Division ruled that “it cannot be said as a matter oflaw that the cause of [Goodacre's] disability is job related stress” and theMedical Board's decision was supported by credible evidence. Further, said thecourt, the Board sufficiently set forth the reasons for its conclusions.
The Appellate Division then reversed the Supreme Court’s decision and deniedGoodacre’s Article 78 petition.
* N.B.There are two “General Municipal Law Section 207-Kaddressing “Disabilities of policemen and firemen in certain cities.” The firstsets out an expiration date of July 1,1973; the second, 207-K*2, setout an expiration date of July 1,1995. However, Retirement and Social Security Law §480.a extendscertain temporary benefits and supplementation programs otherwise “scheduled toexpire or terminate at any time” during the period January 1, 1974 through andincluding December 31, 2011, including the so-called Heart Bill.
The decision isposted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05096.htm
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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections207-a/207-c and providing benefits thereunder is available from the PublicEmployment Law Press. Click on http://section207.blogspot.com/for additional information about this electronic reference manual.
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Creditable medical evidence trumps presumption that adisease of the heart was incurred in the performance of police officer dutiesGoodacre v Kelly, 2012 NY Slip Op 05096, Appellate Division,First Department
Supreme Court, granted the Article 78 petition filed by a New York City policeofficer, Charles Goodacre, seeking, among other things, to annul thedetermination by the Trustees of the Retirement System denying his applicationfor accident disability retirement (ADR) benefits to which he claimed he wasentitled pursuant to General Municipal Law §207-k (the Heart Bill)*. Although Supreme Court found that the officer was“entitled to such benefits as a matter of law,” the Appellate Division reversedthe lower courts ruling.
§207-k sets out the rebuttable presumption thata police officer or firefighter suffering an impairment of health “causedby diseases of the heart, resulting in total or partial disability or death …who successfully passed a physical examination on entry into the service …which examination failed to reveal any evidence of such condition, shall bepresumptive evidence that it was incurred in the performance and discharge ofduty….” The presumption may be rebutted by competent evidence to the contrary.
Citing Borenstein v New York City Employees' RetirementSystem, 88 NY2d 756, the Appellate Division said that Supreme Court “exceededthe scope of its review,” which is to determine “whether ‘some credibleevidence’ supported the Medical Board's determination as to disability.”
In this instance Supreme Court concluded, “contrary tofindings of the Medical Board,” that although there were conflictingsubmissions, as a matter of law, Goodacre’s hypertension “… constituted astress-related condition warranting ADR benefits.”
Such a determination, however, “was the sole province of theMedical Board and the Board of Trustees, not the court.” The Board and theTrustees were to resolve conflicts in the medical evidence. Having reviewed allof the medical reports and, in its most recent decision, recognizing theconflicting evidence, the Medical Board determined that although Goodacre hadhypertensive heart disease, he did not have a stress related disability becausethere was insufficient evidence…. "
Accordingly, the Appellate Division ruled that the statutorypresumption of §207-k was overcome by this credible evidence of Goodacre'sdisabling congenital heart condition.
Contrary to Goodacre's contention, and the Supreme Court'sconclusion, the Appellate Division ruled that “it cannot be said as a matter oflaw that the cause of [Goodacre's] disability is job related stress” and theMedical Board's decision was supported by credible evidence. Further, said thecourt, the Board sufficiently set forth the reasons for its conclusions.
The Appellate Division then reversed the Supreme Court’s decision and deniedGoodacre’s Article 78 petition.
* N.B.There are two “General Municipal Law Section 207-Kaddressing “Disabilities of policemen and firemen in certain cities.” The firstsets out an expiration date of July 1,1973; the second, 207-K*2, setout an expiration date of July 1,1995. However, Retirement and Social Security Law §480.a extendscertain temporary benefits and supplementation programs otherwise “scheduled toexpire or terminate at any time” during the period January 1, 1974 through andincluding December 31, 2011, including the so-called Heart Bill.
The decision isposted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05096.htm
=======================
General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections207-a/207-c and providing benefits thereunder is available from the PublicEmployment Law Press. Click on http://section207.blogspot.com/for additional information about this electronic reference manual.
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Rebutting the statutory presumption that an “on-the-job” injury or death was job-related shifts burden of showing job-relatedness to the claimant
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Rebutting the statutory presumption that an “on-the-job”injury or death was job-related shifts burden of showing job-relatedness to theclaimant
Petrocelli v Sewanhaka Cent. School Dist., 54 AD3d 1143
Section 21 of the Workers’ Compensation Law sets out “a presumptions ofcompensability when an unwitnessed or unexplained death occurs during thecourse of one's employment.” The presumptions “in the absence of substantialevidence to the contrary are:
1. That the claim comes within the provision of this chapter;
2. That sufficient notice thereof was given;
3. That the injury was not occasioned by the willful intention of the injuredemployee to bring about the injury or death of himself or of another;
4. That the injury did not result solely from the intoxication of the injuredemployee while on duty.
5. That the contents of medical and surgical reports introduced in evidence byclaimants for compensation shall constitute prima facie evidence of fact as tothe matter contained therein.
However, these are rebuttablepresumptions and if there is substantial evidence to the contrary, the claimanthas the burden of establishing that the injury or death is causally related toemployment.
Denise Petrocelli’s husband died while coaching a high school basketball game.Mrs. Petrocelli filed a claim for workers' compensation death benefits.
The death certificate listed as Mrs. Petrocelli’s husband’s cause of death as “aspontaneous rupture of the splenic artery with hemoperitoneum, due to portalhypertension complicating cirrhosis of the liver and chemotherapy for treatmentof a primitive neuroectodermal tumor of the right adrenal gland.” A Workers'Compensation Administrative Law Judge ruled that the Workers' Compensation Law §21presumption of compensability had been rebutted by the statements of the causeof death set out in the death certificate. Mrs. Petrocelli was directed toproduce evidence of causally related death. Once this was done, the employerwould have an opportunity to produce a consultant's report on the same issue.
The Workers' Compensation Board affirmed the ALJ’s finding and Mrs. Petrocelliappealed.
The Appellate Division sustained the Board’s determination, ruling that “irrefutableproof excluding all . . . conclusions other than that offered by the employerthat the accidental injury was not work related” is not required to rebut aWorkers’ Compensation Law Section 21 presumption.
In this instance, said the court, evidence contained in the death certificateindicates that Mrs. Petrocelli’s husband’s death was directly caused by factorsnot related to his work. Accordingly, the court declined to disturb the Board'sfinding that the Section 21 presumption was overcome, requiring Mrs. Petrocellito come forward with proof of a causally related death.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07058.htm
Rebutting the statutory presumption that an “on-the-job”injury or death was job-related shifts burden of showing job-relatedness to theclaimant
Petrocelli v Sewanhaka Cent. School Dist., 54 AD3d 1143
Section 21 of the Workers’ Compensation Law sets out “a presumptions ofcompensability when an unwitnessed or unexplained death occurs during thecourse of one's employment.” The presumptions “in the absence of substantialevidence to the contrary are:
1. That the claim comes within the provision of this chapter;
2. That sufficient notice thereof was given;
3. That the injury was not occasioned by the willful intention of the injuredemployee to bring about the injury or death of himself or of another;
4. That the injury did not result solely from the intoxication of the injuredemployee while on duty.
5. That the contents of medical and surgical reports introduced in evidence byclaimants for compensation shall constitute prima facie evidence of fact as tothe matter contained therein.
However, these are rebuttablepresumptions and if there is substantial evidence to the contrary, the claimanthas the burden of establishing that the injury or death is causally related toemployment.
Denise Petrocelli’s husband died while coaching a high school basketball game.Mrs. Petrocelli filed a claim for workers' compensation death benefits.
The death certificate listed as Mrs. Petrocelli’s husband’s cause of death as “aspontaneous rupture of the splenic artery with hemoperitoneum, due to portalhypertension complicating cirrhosis of the liver and chemotherapy for treatmentof a primitive neuroectodermal tumor of the right adrenal gland.” A Workers'Compensation Administrative Law Judge ruled that the Workers' Compensation Law §21presumption of compensability had been rebutted by the statements of the causeof death set out in the death certificate. Mrs. Petrocelli was directed toproduce evidence of causally related death. Once this was done, the employerwould have an opportunity to produce a consultant's report on the same issue.
The Workers' Compensation Board affirmed the ALJ’s finding and Mrs. Petrocelliappealed.
The Appellate Division sustained the Board’s determination, ruling that “irrefutableproof excluding all . . . conclusions other than that offered by the employerthat the accidental injury was not work related” is not required to rebut aWorkers’ Compensation Law Section 21 presumption.
In this instance, said the court, evidence contained in the death certificateindicates that Mrs. Petrocelli’s husband’s death was directly caused by factorsnot related to his work. Accordingly, the court declined to disturb the Board'sfinding that the Section 21 presumption was overcome, requiring Mrs. Petrocellito come forward with proof of a causally related death.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07058.htm
Statute of limitations no bar to bring disciplinary charges when the allegations claim “continuous incompetency”
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Statute of limitations no bar to bring disciplinary chargeswhen the allegations claim “continuous incompetency”Canna v Town of Amherst, 55 AD3d 1269
Town of Amherst Superintendent of the Wastewater Treatment Facility Anthony R.was terminated from his employment following a hearing conducted pursuant toCivil Service Law §75 (1) based on charges alleging incompetence in the supervision of the operation of the facility.
Canna appealed, contending, among other things, that theSection 75 hearing officer “was biased against him;” that the Town Board’sresolution to terminate his employment was not supported by the required numberof valid votes; that the charges were barred by the 18-month statute oflimitations set out in Section 75(4) of the Civil Service Law; and that thepenalty imposed, dismissal, was “shocking to one’s sense of fairness.”
The Appellate Division rejected Canna’s claim the hearingofficer was biased, holding that Canna failed to present "a factualdemonstration to support the allegation of bias and proof that the outcome [ofthe hearing officers findings and recommendation] flowed from it."
As to the validity of the Board’s vote, the court rejectedCanna’s claim that the Board’s vote was tainted by the statements by one TownBoard member to the effect that it would be difficult for Canna to resume hisposition as superintendent of the Facility after all that had transpired.Further, said the Appellate Division, “The record establishes that he furtherstated that, although [that member of the Board] did not believe that [Canna]was ‘single handedly’ responsible for all of the problems at the Facility, hebelieved that the evidence establish that [Canna] was incompetent, andincompetence is a valid basis for termination.”
Addressing the other aspects of Canna’s appeal, theAppellate Division said that the disciplinary proceeding against Canna was nottime-barred based on the 18-month limitations period set forth in Civil ServiceLaw §75(4) because his “alleged incompetency was continuous” and that thepenalty imposed upon him, dismissal, was not so disproportionate to the offenseas to be shocking to one's sense of fairness, citing Pell v Board of Education,34 NY2d 222.
The full text of the decision is posted on the Internet at http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07300.htm
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Statute of limitations no bar to bring disciplinary chargeswhen the allegations claim “continuous incompetency”Canna v Town of Amherst, 55 AD3d 1269
Town of Amherst Superintendent of the Wastewater Treatment Facility Anthony R.was terminated from his employment following a hearing conducted pursuant toCivil Service Law §75 (1) based on charges alleging incompetence in the supervision of the operation of the facility.
Canna appealed, contending, among other things, that theSection 75 hearing officer “was biased against him;” that the Town Board’sresolution to terminate his employment was not supported by the required numberof valid votes; that the charges were barred by the 18-month statute oflimitations set out in Section 75(4) of the Civil Service Law; and that thepenalty imposed, dismissal, was “shocking to one’s sense of fairness.”
The Appellate Division rejected Canna’s claim the hearingofficer was biased, holding that Canna failed to present "a factualdemonstration to support the allegation of bias and proof that the outcome [ofthe hearing officers findings and recommendation] flowed from it."
As to the validity of the Board’s vote, the court rejectedCanna’s claim that the Board’s vote was tainted by the statements by one TownBoard member to the effect that it would be difficult for Canna to resume hisposition as superintendent of the Facility after all that had transpired.Further, said the Appellate Division, “The record establishes that he furtherstated that, although [that member of the Board] did not believe that [Canna]was ‘single handedly’ responsible for all of the problems at the Facility, hebelieved that the evidence establish that [Canna] was incompetent, andincompetence is a valid basis for termination.”
Addressing the other aspects of Canna’s appeal, theAppellate Division said that the disciplinary proceeding against Canna was nottime-barred based on the 18-month limitations period set forth in Civil ServiceLaw §75(4) because his “alleged incompetency was continuous” and that thepenalty imposed upon him, dismissal, was not so disproportionate to the offenseas to be shocking to one's sense of fairness, citing Pell v Board of Education,34 NY2d 222.
The full text of the decision is posted on the Internet at http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07300.htm
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An administrative decision made in violation of lawful procedure, affected by an error of law, that is arbitrary and capricious or that is an abuse of discretion is fatally defective
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An administrative decision made in violation of lawfulprocedure, affected by an error of law, that is arbitrary and capricious or thatis an abuse of discretion is fatally defective Malverne Volunteer Fire Dept. v New York State Off. of FirePrevention & Control, 2012 NY Slip Op 05174, Appellate Division,Second Department
The New York State Fallen Firefighters Memorial AppealsCommittee denied a request to include former Malverne Volunteer Fire Departmentfirefighter Paul Ryan Brady's name on the New York State Fallen Firefighters'Memorial Wall. Malverne appealed, contending that the Committee’s decision wasnot made after a quasi-judicial hearing it claimed was required by theCommittee’s procedures.
Although Supreme Court dismissed Malverne’s petition, theAppellate Division “reversed, on the law” and remanded the matter to SupremeCourt “to direct the New York State Fallen Firefighters Memorial AppealsCommittee to include Paul Ryan Brady's name on the New York State FallenFirefighters' Memorial Wall.”
The Appellate Division explained that in this instance itmust consider whether the Committee’s determination was made in violation oflawful procedure, was affected by an error of law or was arbitrary andcapricious or an abuse of discretion.
The test applied in such cases: “did the action taken by theagency have a rational basis." Citing Matter of Wooley v New York State Dept. of CorrectionalServs., 15 NY3d 275, the Appellate Division said that a court willoverturn such action only "where it is taken without sound basis inreason' or regard to the facts'" or where it is "arbitrary andcapricious."
In this instance, said the court, the determination of the Committee that the death of firefighter Brady was not a "line of duty death"within the selection criteria for inclusion on the New York State FallenFirefighters Memorial Wall was arbitrary and capricious and did not have arational basis in the record.
Indeed, said the court, “The record demonstrates that, underthe applicable selection criteria, Paul Ryan Brady died while engaged in anaction that was required, authorized or recognized by law, rule, regulation,[or] condition of employment.’"
Accordingly, the Appellate Division ruled that Supreme Courtshould have [1] granted Malverne’s petition, [2] annulled the Committee’s determinationand [3] directed the appeals committee to include Brady's name on the New YorkState Fallen Firefighters' Memorial Wall
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05174.htm
An administrative decision made in violation of lawfulprocedure, affected by an error of law, that is arbitrary and capricious or thatis an abuse of discretion is fatally defective Malverne Volunteer Fire Dept. v New York State Off. of FirePrevention & Control, 2012 NY Slip Op 05174, Appellate Division,Second Department
The New York State Fallen Firefighters Memorial AppealsCommittee denied a request to include former Malverne Volunteer Fire Departmentfirefighter Paul Ryan Brady's name on the New York State Fallen Firefighters'Memorial Wall. Malverne appealed, contending that the Committee’s decision wasnot made after a quasi-judicial hearing it claimed was required by theCommittee’s procedures.
Although Supreme Court dismissed Malverne’s petition, theAppellate Division “reversed, on the law” and remanded the matter to SupremeCourt “to direct the New York State Fallen Firefighters Memorial AppealsCommittee to include Paul Ryan Brady's name on the New York State FallenFirefighters' Memorial Wall.”
The Appellate Division explained that in this instance itmust consider whether the Committee’s determination was made in violation oflawful procedure, was affected by an error of law or was arbitrary andcapricious or an abuse of discretion.
The test applied in such cases: “did the action taken by theagency have a rational basis." Citing Matter of Wooley v New York State Dept. of CorrectionalServs., 15 NY3d 275, the Appellate Division said that a court willoverturn such action only "where it is taken without sound basis inreason' or regard to the facts'" or where it is "arbitrary andcapricious."
In this instance, said the court, the determination of the Committee that the death of firefighter Brady was not a "line of duty death"within the selection criteria for inclusion on the New York State FallenFirefighters Memorial Wall was arbitrary and capricious and did not have arational basis in the record.
Indeed, said the court, “The record demonstrates that, underthe applicable selection criteria, Paul Ryan Brady died while engaged in anaction that was required, authorized or recognized by law, rule, regulation,[or] condition of employment.’"
Accordingly, the Appellate Division ruled that Supreme Courtshould have [1] granted Malverne’s petition, [2] annulled the Committee’s determinationand [3] directed the appeals committee to include Brady's name on the New YorkState Fallen Firefighters' Memorial Wall
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05174.htm
“Tebowing” and other unusual actions leading to student disciplinary suspensions
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“Tebowing” and other unusual actions leading to studentdisciplinary suspensions
Source: On Board, a publication of the New York State SchoolBoards Association
“Tebowing” that resulted in hallway congestion and otherunusual reasons for initiating student disciplinary actions leading to suspensions are described in anarticle published in the July 2, 2012 edition of the New York State SchoolBoards Association’s publication On Board.
Among other incidents leading to suspensions: Growing long hairfor charity [in violation of the school’s dress code] and “Chivalry” [holdingan exterior door open for an adult known to the student in violation of securityprocedures].
The article is posted on the Internet at:http://www.nyssba.org/index.php?src=news&submenu=news_media&srctype=detail&category=On%20Board%20Online%20July%202%202012&refno=2213
Source: On Board, a publication of the New York State SchoolBoards Association
“Tebowing” that resulted in hallway congestion and otherunusual reasons for initiating student disciplinary actions leading to suspensions are described in anarticle published in the July 2, 2012 edition of the New York State SchoolBoards Association’s publication On Board.
Among other incidents leading to suspensions: Growing long hairfor charity [in violation of the school’s dress code] and “Chivalry” [holdingan exterior door open for an adult known to the student in violation of securityprocedures].
The article is posted on the Internet at:http://www.nyssba.org/index.php?src=news&submenu=news_media&srctype=detail&category=On%20Board%20Online%20July%202%202012&refno=2213
7 Temmuz 2012 Cumartesi
5000 Dollar Loan With No Credit Check
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When you are seeking to borrow a sum of money, it is important that you analyze your finances carefully so that you know whether you are able to support the loan repayments without landing yourself in more debt.
As more and more lenders enter the market to offer you loan products of every conceivable type, sometimes it is easy to be tempted by their offers for so-called free loans for the unemployed or interest-free cash advance with bad credit. Therefore, if a person is in the market to get a 5000 dollar with no credit check, he or she should first understand what are the avenues available, and at what cost.
To get a fast loan of $5000, the traditional means of getting an unsecured signature personal loan from banks are still the preferred choice for consumers who can rely on their good credit standings to achieve their aim of borrowing money with low interest. One could easily visit the website of a bank and apply for online bank loans with instant approval. If you are already a customer of a bank that has offered you credit facilities like cash advance overdraft services, you could tap into this to borrow 5000 dollars instantly if the amount falls within your credit limit. Alternatively, you can also arrange to apply for a 5000 dollar installment loan that allows you to payback within 2 to 3 years.
However, if you fail into the group of people who have fair or bad credit or have little access to mainstream credit, trying to borrow 5000 dollars with no credit check may prove futile with traditional lenders.
In such cases, you can search within private sources for loans with bad credit. In private loan lending, a market which is dominated by online payday loan companies and smaller direct money lenders, high interest is synonymous with them. An unsecured $5000 loan with no credit check will not come cheap as these type of unsecured personal loans are deemed as high risk. If you need to borrow 5000 dollars quickly but knowing you have poor credit, you have to make sure that the APR on the $5000 bad credit high risk loan is something that you can live with.
As more and more lenders enter the market to offer you loan products of every conceivable type, sometimes it is easy to be tempted by their offers for so-called free loans for the unemployed or interest-free cash advance with bad credit. Therefore, if a person is in the market to get a 5000 dollar with no credit check, he or she should first understand what are the avenues available, and at what cost.
To get a fast loan of $5000, the traditional means of getting an unsecured signature personal loan from banks are still the preferred choice for consumers who can rely on their good credit standings to achieve their aim of borrowing money with low interest. One could easily visit the website of a bank and apply for online bank loans with instant approval. If you are already a customer of a bank that has offered you credit facilities like cash advance overdraft services, you could tap into this to borrow 5000 dollars instantly if the amount falls within your credit limit. Alternatively, you can also arrange to apply for a 5000 dollar installment loan that allows you to payback within 2 to 3 years.
However, if you fail into the group of people who have fair or bad credit or have little access to mainstream credit, trying to borrow 5000 dollars with no credit check may prove futile with traditional lenders.
In such cases, you can search within private sources for loans with bad credit. In private loan lending, a market which is dominated by online payday loan companies and smaller direct money lenders, high interest is synonymous with them. An unsecured $5000 loan with no credit check will not come cheap as these type of unsecured personal loans are deemed as high risk. If you need to borrow 5000 dollars quickly but knowing you have poor credit, you have to make sure that the APR on the $5000 bad credit high risk loan is something that you can live with.
Borrow 300 Dollars Loan With No Bank Account
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While a bank account may seem easy to apply, there are many people from low income families who do not have bank accounts, perhaps due to them having no savings or find it difficult to put in a fixed deposit with a bank. For these people who may also have bad credit, there are not many ways for poor people to find loans. If they need to borrow small sums of money, like a 100-dollar loan, up to an amount of $1500, the best bet is through a payday loan with no checking account.
I Need To Borrow $300 Fast
Need to borrow $300 dollars fast without a bank account? If you have been finding it difficult to get online personal loans on the internet because you do not have a checking account; a pre-requisite with many online payday lenders, you will be pleased to know that it is in fact, doable, and very easy to apply for any payday loans without a checking account.While a bank account may seem easy to apply, there are many people from low income families who do not have bank accounts, perhaps due to them having no savings or find it difficult to put in a fixed deposit with a bank. For these people who may also have bad credit, there are not many ways for poor people to find loans. If they need to borrow small sums of money, like a 100-dollar loan, up to an amount of $1500, the best bet is through a payday loan with no checking account.
$300 Short Term Loan With No Job And No Bank Account
No one wants to have to get a loan, but there are always times when you need financial help for low income people quickly; just to borrow an extra $300 now or need money to pay for bills may make the difference to getting through a rough patch. With a $300 payday loan with no bank account needed, you can take advantage of this type of loans without direct deposit.
90 day Installment Loans With No Credit Check
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Do you have bad credit but find yourself unable to apply successfully for personal loans with low fee from the banks? If your FICO score is low, you may want to consider 90 day installment loans with no credit check. This is because such private loans do not require you to have good credit history and they are even available to people with no credit history and need to borrow money with no co-signer needed.
3 month loans with no credit check are generally offered by direct lenders on the Internet and some of them may be from online payday companies with short term loans. Generally, if you need to borrow 1500 dollars with no credit check for 90 days, you will not be required by the lenders to offer collateral. Short term personal loans not longer than 3 months and below the amount of 2000 dollars can be approved without guarantors needed.
Despite the low barrier to qualify for these no credit check installment loans, there are several factors that installment loan lending companies look for in applicants to ascertain their ability to service these unsecured personal loans with installments.
Without a doubt, you will need to provide employment status and most long term loan lenders will require a borrower to earn a minimum amount of salary per month. Depending on the amount of money you wish to borrow, your application for a bad credit 90 day installment loan will very much be approved or rejected based on your earning ability. As an example, if you are on low income and need to borrow 3000 dollars today, you would not stand as much of a chance as compared to someone who earns 1500 dollars and is looking to get a 90 day loan for 1000 dollars. Of course, at times a lender will lend money to people with low income by charging higher interest with stricter terms and whether anyone will be able to get a fast approval for installment loans with bad credit depends on which financial institution they approach.
Therefore make use of the Internet to find online installment loans for 90 days with easy approval. Remember that 90 day loan with monthly installments will invariably be more expensive than a 1 month short loan so bear in mind the amount of interest you will need to fork out over the length of the loan period.
Lenders want to look for someone who is a serious borrower and are fully capable of returning the cash at the end of the contract so try to think of a repayment plan and work out the amount of money you need versus the availability of disposable cash you have for making the repayments.
3 month loans with no credit check are generally offered by direct lenders on the Internet and some of them may be from online payday companies with short term loans. Generally, if you need to borrow 1500 dollars with no credit check for 90 days, you will not be required by the lenders to offer collateral. Short term personal loans not longer than 3 months and below the amount of 2000 dollars can be approved without guarantors needed.
Despite the low barrier to qualify for these no credit check installment loans, there are several factors that installment loan lending companies look for in applicants to ascertain their ability to service these unsecured personal loans with installments.
Without a doubt, you will need to provide employment status and most long term loan lenders will require a borrower to earn a minimum amount of salary per month. Depending on the amount of money you wish to borrow, your application for a bad credit 90 day installment loan will very much be approved or rejected based on your earning ability. As an example, if you are on low income and need to borrow 3000 dollars today, you would not stand as much of a chance as compared to someone who earns 1500 dollars and is looking to get a 90 day loan for 1000 dollars. Of course, at times a lender will lend money to people with low income by charging higher interest with stricter terms and whether anyone will be able to get a fast approval for installment loans with bad credit depends on which financial institution they approach.
Therefore make use of the Internet to find online installment loans for 90 days with easy approval. Remember that 90 day loan with monthly installments will invariably be more expensive than a 1 month short loan so bear in mind the amount of interest you will need to fork out over the length of the loan period.
Lenders want to look for someone who is a serious borrower and are fully capable of returning the cash at the end of the contract so try to think of a repayment plan and work out the amount of money you need versus the availability of disposable cash you have for making the repayments.
Payday Loans That Don't Require Direct Deposit
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"Where can I borrow without a checking account and no credit?" Most of the time, we tend to think that if you do not have a bank checking account, it is impossible for you to get a guaranteed loan anywhere. Understandably, most of the fast payday loan lenders require customers to have a checking account with direct deposit as it makes it easy for them to debit their customer's accounts for monies owed to them. However, if you need to borrow money and have bad credit and no checking account, it is possible to find instant payday loans that don't require direct deposit.
Trends have changed and there are unsecured personal loans for people without a bank account as well as short term cash advance loans with no bank statement needed. Nowadays, online payday personal loan lenders with no direct deposit requirements only require you to have a savings account or debit card. For people who need a quick loan but have no bank checking account, this will come as a much needed solution.
You can search for online signature loans with no bank account needed. Over the Internet, you would be able to find some loan comparison websites which help you to find out who has the lowest cost payday loan that don't require direct deposit which you can apply for a 12 month personal loan without a bank checking account. However, do check to see if it is a reputable loan lender you are dealing with. BBB-approved loan lenders with no credit check are regulated and they adhere to strict government laws on consumer loans so they provide more security and also provide an avenue for legal recourse if there is any dispute in the future.
No faxing payday loans that don't need a checking account can also be made available through peer lending websites like Prosper, which helps to match small-individual lenders with borrowers with less bureaucracy. A Prosper alternative is LendingClub or Zopa from the UK. As always, do your due diligence first to find online personal loans with no direct deposit requirement. Good luck.
Trends have changed and there are unsecured personal loans for people without a bank account as well as short term cash advance loans with no bank statement needed. Nowadays, online payday personal loan lenders with no direct deposit requirements only require you to have a savings account or debit card. For people who need a quick loan but have no bank checking account, this will come as a much needed solution.
You can search for online signature loans with no bank account needed. Over the Internet, you would be able to find some loan comparison websites which help you to find out who has the lowest cost payday loan that don't require direct deposit which you can apply for a 12 month personal loan without a bank checking account. However, do check to see if it is a reputable loan lender you are dealing with. BBB-approved loan lenders with no credit check are regulated and they adhere to strict government laws on consumer loans so they provide more security and also provide an avenue for legal recourse if there is any dispute in the future.
No faxing payday loans that don't need a checking account can also be made available through peer lending websites like Prosper, which helps to match small-individual lenders with borrowers with less bureaucracy. A Prosper alternative is LendingClub or Zopa from the UK. As always, do your due diligence first to find online personal loans with no direct deposit requirement. Good luck.
500 Dollar Loan No Credit Check Lenders
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1) You need to be an US citizen and passed the age of 18.
2) You have to provide verifiable income to qualify for a 1000 dollar cash advance.
3) If you are not working, you may also be able to get a payday loan on benefits, or what others call an unemployment payday loan.
4) Direct deposit is required for both of the above. Either your salary or benefit welfare is given to you directly to your bank account.
5) As such, you are also required to have a bank checking or savings account.
Normally, you can borrow up to one thousand dollar with no credit check. However, some lenders may prefer an applicant to build credit trust with them before they are cleared to borrow 1000 dollars with instant approval. But as long as you are able to meet those criteria stated earlier, you shouldn't have any problem in looking for a 500 loan from no credit check short term lenders.
The repayment term for these types of unsecured bad credit loans are about 30 days or slightly not more than 60 days. If you need anything more than 3500 dollars, or wish to get a guaranteed loan that you can pay back monthly, you should consider online installment loans with no credit check instead. Bad credit installment lenders are able to give you a long term money loan but you may have to provide collateral though.
Guaranteed lenders that provide 500 dollar loans do not offer any monthly installment loans. You are expected to pay back when you get your salary. To avoid incurring late penalty fee, do remember to keep sufficient funds in your bank account so that your lenders can make a debit transaction smoothly.
500 Dollar Loan Lenders
If you are looking for a 500 dollar loan today, do you know where is the best place to borrow money online? Or for that matter, who are the lenders that provide online personal loans with no credit check? There are so many different types of loan products in the market and everyone of them serves a unique purpose. When you need some money for an emergency, there is a quick solution and the answer lies in using instant approval loans for 500 dollars.I Need A Fast Approval Loan Now
These fast approval loans for available from online loan lenders and you can get one anytime on the Internet just by submitting a simple application form. Basically there is no need to have collateral, nor does it require you to have a cosigner to qualify for these no credit check 500 dollar loans. The general requirements for a 30 day 500 dollars loan are as follow:1) You need to be an US citizen and passed the age of 18.
2) You have to provide verifiable income to qualify for a 1000 dollar cash advance.
3) If you are not working, you may also be able to get a payday loan on benefits, or what others call an unemployment payday loan.
4) Direct deposit is required for both of the above. Either your salary or benefit welfare is given to you directly to your bank account.
5) As such, you are also required to have a bank checking or savings account.
Where To Borrow 500 Dollars With No Credit Check
These 500 dollar personal loans with no credit check will not require you to have excellent credit score. So, if you have bad credit and need to borrow 600 dollars online, you can submit your application without any worry.Normally, you can borrow up to one thousand dollar with no credit check. However, some lenders may prefer an applicant to build credit trust with them before they are cleared to borrow 1000 dollars with instant approval. But as long as you are able to meet those criteria stated earlier, you shouldn't have any problem in looking for a 500 loan from no credit check short term lenders.
The repayment term for these types of unsecured bad credit loans are about 30 days or slightly not more than 60 days. If you need anything more than 3500 dollars, or wish to get a guaranteed loan that you can pay back monthly, you should consider online installment loans with no credit check instead. Bad credit installment lenders are able to give you a long term money loan but you may have to provide collateral though.
Guaranteed lenders that provide 500 dollar loans do not offer any monthly installment loans. You are expected to pay back when you get your salary. To avoid incurring late penalty fee, do remember to keep sufficient funds in your bank account so that your lenders can make a debit transaction smoothly.
5 Temmuz 2012 Perşembe
1000 Dollar Loan
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For folks who have bad credit, the above method is not applicable to you unfortunately but it doesn't mean you are out of options in looking for a fast personal loan with easy approval. Skip the banks and avoid making numerous requests as that will appear to lenders that you are on a borrowing binge. Getting a 1000 dollar loan with bad credit aint too difficult since these days, as you can always get a poor credit payday loan instead.
You can find countless websites that offer you 1000 dollar loans with no credit check and it is easy to get overwhelmed by them, especially if you are a first-time borrower. We recommend that you use our no-obligation loan service to help you get a low interest cash advance with guaranteed approval. If you have a financial emergency now, use our services today.
Apply online for guaranteed cash loans from 100dayloanlenders.com - the easiest way to get a loan online.
Where Can I Get a 1000 Dollar Cash Loan
Do you have a financial emergency which requires extra funds and you are thinking how to get a 1000 dollar loan? When you need money fast, what are some of the quickest way to get a loan? Are you thinking of asking from your friends or colleagues or do you find it a tad embarrassing to do so? If you prefer to find a commercial solution in getting money, you may want to go the bank but then again, not everyone has access to credit facilities from commercial banks. There are people who have bad credit or no credit history and they are not going to find it easy at all to get a small personal loan through their bank.Direct Personal Loans For People With Good And Fair Credit
If you have good credit and you are using credit cards, maybe you can request for a line of credit to get 1000 dollars from your bank. It is convenient too since you don't have to do much footwork as nowadays a lot of banks already offer online personal loans which you can apply directly from their websites. Most banks offer low interest loans that start from a thousand dollar and you can negotiate to pay it off through monthly installments or lump the sum into your monthly credit card bills. Bank loans with monthly payback terms can range between 6 months to 24 months and even up to 6 years or more. Speak to your bank representative to see how you can work out a win-win solution to get an emergency cash advance of 1000 dollars.For folks who have bad credit, the above method is not applicable to you unfortunately but it doesn't mean you are out of options in looking for a fast personal loan with easy approval. Skip the banks and avoid making numerous requests as that will appear to lenders that you are on a borrowing binge. Getting a 1000 dollar loan with bad credit aint too difficult since these days, as you can always get a poor credit payday loan instead.
Easy 1000 Dollar Loans No Credit
Definitely you can get a 1000 dollar cash advance through payday loan lenders but alas, invariably there is a downside to it. Obviously it is going to cost you a lot more to borrow 1000 with bad credit as compared to someone who has a stellar credit history. You have to accept this fact and take it on your chin. Nevertheless, because a payday advance is a short to intermediate loan, most people are able to tolerate the seemingly high APR and pay off the loan in a timely manner.You can find countless websites that offer you 1000 dollar loans with no credit check and it is easy to get overwhelmed by them, especially if you are a first-time borrower. We recommend that you use our no-obligation loan service to help you get a low interest cash advance with guaranteed approval. If you have a financial emergency now, use our services today.
Apply online for guaranteed cash loans from 100dayloanlenders.com - the easiest way to get a loan online.
Destruction or loss of evidence
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Destruction or loss of evidenceDep't of Correction v. Archibald, OATH Index Nos.2214/08, 2215/08 & 2216/08
OATH Administrative Law Judge John Spooner rejected acorrection officer's motion to dismiss disciplinary charges filed againsthim based upon the spoliation of certain logbooks sought as evidence.Explaining that under New York law, sanctions for spoliation of evidence areappropriate where a litigant intentionally or negligently disposes of crucialevidence before the adversary has an opportunity to inspect them, the ALJconcluded that the officer failed to establish how the logbooks disappeared orhow their disappearance would prejudice his defense.
Destruction or loss of evidenceDep't of Correction v. Archibald, OATH Index Nos.2214/08, 2215/08 & 2216/08
OATH Administrative Law Judge John Spooner rejected acorrection officer's motion to dismiss disciplinary charges filed againsthim based upon the spoliation of certain logbooks sought as evidence.Explaining that under New York law, sanctions for spoliation of evidence areappropriate where a litigant intentionally or negligently disposes of crucialevidence before the adversary has an opportunity to inspect them, the ALJconcluded that the officer failed to establish how the logbooks disappeared orhow their disappearance would prejudice his defense.
Simple majority vote required for most personnel actions taken by a Board
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Simple majority voterequired for most personnel actions taken by a Board Inquiry from a NYPPL reader
From time to time a reader will submit a question concerninga personnel matter that may be of general interest to the readers of New YorkPublic Personnel Law. In this instance the reader submitted an inquiryregarding the termination and reinstatement of police officers or firefightersby a Town or Village Board. The question: "Does a Town Board or a VillageBoard need a 'super majority' to either terminate or reinstate apolice officer or firefighter?"
In your editor's opinion, unless there is a law, rule,regulation or a provision in a collective bargaining agreement providingotherwise, generally all that is required to appoint, suspend, terminate orreinstate an individual to a position is a simple majority of a board when aboard is the “appointing authority.”
For example, Education Law Section 2573(1)(a) permits thetermination of a probationary teacher "at any time during [theindividual's] probationary period, on the recommendation of the superintendentof schools, by a majority vote of the board of education" while EducationLaw Section 2509(2) states that a majority vote of a school board for tenure isrequired to grant a probationary teacher tenure.
With respect to the granting of tenure by a board ofeducation, the Commissioner of Education rejected the theory that a majorityvoting against tenure was required to deny a teacher tenure in the district[Decisions of the Commissioner of Education Decision No. 14,337]. In otherwords, unless there is an affirmative vote by a majority of the members of theschool board to grant the individual tenure, he or she cannot claim tenureexcept in those relatively rare situations where the individual attains tenureby acquiescence or estoppel by operation of law.
As to a “super-majority” vote requirement, in some instancesthis is provided for by statute.
In Headriver, LLC v. Town Bd. of Town of Riverhead, 2 N.Y.3d766, the Court of Appeals pointed out that where a planning commissionrecommends that the application for a special use permit be denied, GeneralMunicipal Law §239-m requires a “super-majority” vote by the town board inorder to overturn the commission’s recommendation.
In Headriver, following a public hearing, the Board voted3-2 to grant the special use permit. As the statutory super-majorityrequirement [i.e., a 4-1 vote], the commission's recommendation had not beenoverturned by the Board as the statute required “a vote of a majority plus oneof all the members thereof.”
In another case, the court ruled that the Brookhaven TownBoard violated its own procedures when it considered a resolution less than 90days after earlier rejecting it. The Board’s procedure mandated that "AResolution, Local Law or Ordinance that receives less than a majority of votesshall not be reintroduced for ninety days (90) or unless this rule is waived bya super-majority vote of the Town Board." [East End Property Co. No. 1 LLCv. Town Bd. of Town of Brookhaven, 15 Misc.3d 1138(A)].
Additionally, General Construction Law §41 requires amajority of the entire board to take any official action. Relying on thisprovision, the Commissioner of Education ruled that a school board may notadopt a policy requiring affirmative votes by more than a majority of the wholenumber of the board to take official action because neither the Education Lawnor the General Construction Law authorizes a board to adopt requirements inexcess of those already provided by statute (Miller, 17 Ed Dept Rep 275).
In contrast, Education Law §3016(2) requires a two-thirdsvote of the board to appoint a relative of a board member to a teachingposition, rather than the simple majority to appoint a non-relative, thusrequiring a "super-majority" to appoint a board member's relative toa teaching position.
As earlier noted, a “super-majority” may be “a majority ofall voting members of a body, plus one;" a specified number such as atwo-third or three-quarter vote; or in rare cases, a unanimous vote by thebody.
On a related issue, "Determining if a quorumrequired to conduct official business is present," see Formal Opinions ofthe Attorney General 2008-F1.
Simple majority voterequired for most personnel actions taken by a Board Inquiry from a NYPPL reader
From time to time a reader will submit a question concerninga personnel matter that may be of general interest to the readers of New YorkPublic Personnel Law. In this instance the reader submitted an inquiryregarding the termination and reinstatement of police officers or firefightersby a Town or Village Board. The question: "Does a Town Board or a VillageBoard need a 'super majority' to either terminate or reinstate apolice officer or firefighter?"
In your editor's opinion, unless there is a law, rule,regulation or a provision in a collective bargaining agreement providingotherwise, generally all that is required to appoint, suspend, terminate orreinstate an individual to a position is a simple majority of a board when aboard is the “appointing authority.”
For example, Education Law Section 2573(1)(a) permits thetermination of a probationary teacher "at any time during [theindividual's] probationary period, on the recommendation of the superintendentof schools, by a majority vote of the board of education" while EducationLaw Section 2509(2) states that a majority vote of a school board for tenure isrequired to grant a probationary teacher tenure.
With respect to the granting of tenure by a board ofeducation, the Commissioner of Education rejected the theory that a majorityvoting against tenure was required to deny a teacher tenure in the district[Decisions of the Commissioner of Education Decision No. 14,337]. In otherwords, unless there is an affirmative vote by a majority of the members of theschool board to grant the individual tenure, he or she cannot claim tenureexcept in those relatively rare situations where the individual attains tenureby acquiescence or estoppel by operation of law.
As to a “super-majority” vote requirement, in some instancesthis is provided for by statute.
In Headriver, LLC v. Town Bd. of Town of Riverhead, 2 N.Y.3d766, the Court of Appeals pointed out that where a planning commissionrecommends that the application for a special use permit be denied, GeneralMunicipal Law §239-m requires a “super-majority” vote by the town board inorder to overturn the commission’s recommendation.
In Headriver, following a public hearing, the Board voted3-2 to grant the special use permit. As the statutory super-majorityrequirement [i.e., a 4-1 vote], the commission's recommendation had not beenoverturned by the Board as the statute required “a vote of a majority plus oneof all the members thereof.”
In another case, the court ruled that the Brookhaven TownBoard violated its own procedures when it considered a resolution less than 90days after earlier rejecting it. The Board’s procedure mandated that "AResolution, Local Law or Ordinance that receives less than a majority of votesshall not be reintroduced for ninety days (90) or unless this rule is waived bya super-majority vote of the Town Board." [East End Property Co. No. 1 LLCv. Town Bd. of Town of Brookhaven, 15 Misc.3d 1138(A)].
Additionally, General Construction Law §41 requires amajority of the entire board to take any official action. Relying on thisprovision, the Commissioner of Education ruled that a school board may notadopt a policy requiring affirmative votes by more than a majority of the wholenumber of the board to take official action because neither the Education Lawnor the General Construction Law authorizes a board to adopt requirements inexcess of those already provided by statute (Miller, 17 Ed Dept Rep 275).
In contrast, Education Law §3016(2) requires a two-thirdsvote of the board to appoint a relative of a board member to a teachingposition, rather than the simple majority to appoint a non-relative, thusrequiring a "super-majority" to appoint a board member's relative toa teaching position.
As earlier noted, a “super-majority” may be “a majority ofall voting members of a body, plus one;" a specified number such as atwo-third or three-quarter vote; or in rare cases, a unanimous vote by thebody.
On a related issue, "Determining if a quorumrequired to conduct official business is present," see Formal Opinions ofthe Attorney General 2008-F1.
Treating groups in the collective bargaining unit differently does not always constitute to a violation of the union’s duty of fair representation
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Treating groups in the collective bargaining unitdifferently does not always constitute to a violation of the union’s duty offair representationCalkins v Police Benevolent Assn. of N.Y. State Troopers,Inc., 55 AD3d 1328
Thomas E. Calkins and five other retired State Troopers wereamong some 72 retirees rehired as "Special Troopers" on a temporarybasis in 2001. They commenced this lawsuit in an effort to recover wage andbenefit increases negotiated by the Police Benevolent Association of New YorkState Troopers [PBA] pursuant to a collective bargaining agreement (CBA)between it and the State of New York
Calkins charged the PBA violated its duty of fairrepresentation as the exclusive bargaining agent for the Special Troopers as aresult of the PBA excluding the Special Troopers from expanded duty pay andincreases in longevity pay in an effort to obtain a substantial increase inlongevity pay for the other State Troopers in the unit represented by the PBA.The Special Troopers’ exclusion was reflected in Memorandum of Agreement signedby the PBA and the State and subsequently ratified by PBA’s membership.
Supreme Court granted the PBA’s motion for summary judgmentdismissing the Calkins' action and Calkins appealed.
The Appellate Division commence its review of the appeal bynoting that in order “To establish that a bargaining agent breached its duty offair representation, a plaintiff must show that the bargaining agent's conduct wasarbitrary, discriminatory, or in bad faith,” citing Civil Service Bar Assn.,Local 237 v City of New York, 64 NY2d 188. To do so, said the court, thecomplaining party must provide substantial evidence of fraud, deceitful action,or dishonest conduct, or evidence of discrimination that is intentional,severe, and unrelated to legitimate objectives of the collective bargainingrepresentative.
Here, however, the fact that the PBA treated the SpecialTroopers differently from other State Troopers represented by it in itsnegotiations for a new collective bargaining agreement does not amount to aviolation of the duty of fair representation. The court found that the PBA “metits initial burden on the motion by establishing that it undertook ‘agood-faith balancing of the divergent interests of its membership and [chose]to forgo benefits which may be gained for one class of employees in exchangefor benefits to other employees.’"
Further, said the Appellate Division, the recorddemonstrates that the PBA did not misrepresent its negotiating position. A"Contract Update" memorandum sent to its members expressly statedthat the Special Troopers were excluded from "all new monetary aspects ofthe contract."
As the record before it did not demonstrate that the PBA’sconduct was arbitrary, discriminatory or in bad faith, the Appellate Divisionsustained the lower court’s granting the PBA’s motion for summary judgment.
The full text of the decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07368.htm
Treating groups in the collective bargaining unitdifferently does not always constitute to a violation of the union’s duty offair representationCalkins v Police Benevolent Assn. of N.Y. State Troopers,Inc., 55 AD3d 1328
Thomas E. Calkins and five other retired State Troopers wereamong some 72 retirees rehired as "Special Troopers" on a temporarybasis in 2001. They commenced this lawsuit in an effort to recover wage andbenefit increases negotiated by the Police Benevolent Association of New YorkState Troopers [PBA] pursuant to a collective bargaining agreement (CBA)between it and the State of New York
Calkins charged the PBA violated its duty of fairrepresentation as the exclusive bargaining agent for the Special Troopers as aresult of the PBA excluding the Special Troopers from expanded duty pay andincreases in longevity pay in an effort to obtain a substantial increase inlongevity pay for the other State Troopers in the unit represented by the PBA.The Special Troopers’ exclusion was reflected in Memorandum of Agreement signedby the PBA and the State and subsequently ratified by PBA’s membership.
Supreme Court granted the PBA’s motion for summary judgmentdismissing the Calkins' action and Calkins appealed.
The Appellate Division commence its review of the appeal bynoting that in order “To establish that a bargaining agent breached its duty offair representation, a plaintiff must show that the bargaining agent's conduct wasarbitrary, discriminatory, or in bad faith,” citing Civil Service Bar Assn.,Local 237 v City of New York, 64 NY2d 188. To do so, said the court, thecomplaining party must provide substantial evidence of fraud, deceitful action,or dishonest conduct, or evidence of discrimination that is intentional,severe, and unrelated to legitimate objectives of the collective bargainingrepresentative.
Here, however, the fact that the PBA treated the SpecialTroopers differently from other State Troopers represented by it in itsnegotiations for a new collective bargaining agreement does not amount to aviolation of the duty of fair representation. The court found that the PBA “metits initial burden on the motion by establishing that it undertook ‘agood-faith balancing of the divergent interests of its membership and [chose]to forgo benefits which may be gained for one class of employees in exchangefor benefits to other employees.’"
Further, said the Appellate Division, the recorddemonstrates that the PBA did not misrepresent its negotiating position. A"Contract Update" memorandum sent to its members expressly statedthat the Special Troopers were excluded from "all new monetary aspects ofthe contract."
As the record before it did not demonstrate that the PBA’sconduct was arbitrary, discriminatory or in bad faith, the Appellate Divisionsustained the lower court’s granting the PBA’s motion for summary judgment.
The full text of the decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07368.htm
Workers’ compensation benefits discontinued upon individual’s retirement based on a finding that he had “removed himself from the labor market”
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Workers’ compensation benefits discontinued upon individual’sretirement based on a finding that he had “removed himself from the labor market” Richardson v Schenectady City School Dist., 2012 NY Slip Op05230, Appellate Division, Third Department
Dana Richardsonobjected to a Workers' Compensation determination that he had voluntarilyremoved himself from the labor market and denied his claim for workers'compensation benefits.
Richardson, a health teacher for the Schenectady City SchoolDistrict, sustained a variety of compensable injuries, including injuries to his headand back, while breaking up a fight between students in February 2006. InDecember 2008, he submitted a letter to the school district advising it that hewould be retiring effective June 2009.
After the effective date of Richardson’s retirement, the schooldistrict and its workers' compensation carrier moved to suspend benefits basedupon Richardson's “voluntary withdrawal from the labor market”. Ultimately, Workers'Compensation ruled that Richardson had, indeed, withdrew from the labor marketand as a result was no longer entitled to awards upon his retirement in 2009.
The Appellate Division affirmed Workers' Compensation’s decision,explaining that “Whether [Richardson’s] retirement constituted a voluntarywithdrawal from the labor market presented a factual issue for the Board, andits determination will not be disturbed if supported by substantial evidence.”In this instance Workers' Compensation relied on the report of a physician whoperformed an independent medical examination and opined that, while Richardson sufferedfrom a moderate to marked disability, he was capable of working in a modifiedduty capacity.
Another element that was considered: Richardson’s letterinforming the school district indicated that “he was taking advantage of a veryfavorable retirement incentive.” Richardson did not indicated that his physicaldisabilities played a role in his decision to retire and, in addition, hetestified that he never discussed retirement with his doctors, did not advisethe employer that he was retiring due to his disabilities and never asked foran accommodation to return to work within his restrictions.
Although there was “evidence that may have supported adifferent result,” the Appellate Division said that the determination wassupported by substantial evidence and thus would not be disturbed.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05230.htm
Workers’ compensation benefits discontinued upon individual’sretirement based on a finding that he had “removed himself from the labor market” Richardson v Schenectady City School Dist., 2012 NY Slip Op05230, Appellate Division, Third Department
Dana Richardsonobjected to a Workers' Compensation determination that he had voluntarilyremoved himself from the labor market and denied his claim for workers'compensation benefits.
Richardson, a health teacher for the Schenectady City SchoolDistrict, sustained a variety of compensable injuries, including injuries to his headand back, while breaking up a fight between students in February 2006. InDecember 2008, he submitted a letter to the school district advising it that hewould be retiring effective June 2009.
After the effective date of Richardson’s retirement, the schooldistrict and its workers' compensation carrier moved to suspend benefits basedupon Richardson's “voluntary withdrawal from the labor market”. Ultimately, Workers'Compensation ruled that Richardson had, indeed, withdrew from the labor marketand as a result was no longer entitled to awards upon his retirement in 2009.
The Appellate Division affirmed Workers' Compensation’s decision,explaining that “Whether [Richardson’s] retirement constituted a voluntarywithdrawal from the labor market presented a factual issue for the Board, andits determination will not be disturbed if supported by substantial evidence.”In this instance Workers' Compensation relied on the report of a physician whoperformed an independent medical examination and opined that, while Richardson sufferedfrom a moderate to marked disability, he was capable of working in a modifiedduty capacity.
Another element that was considered: Richardson’s letterinforming the school district indicated that “he was taking advantage of a veryfavorable retirement incentive.” Richardson did not indicated that his physicaldisabilities played a role in his decision to retire and, in addition, hetestified that he never discussed retirement with his doctors, did not advisethe employer that he was retiring due to his disabilities and never asked foran accommodation to return to work within his restrictions.
Although there was “evidence that may have supported adifferent result,” the Appellate Division said that the determination wassupported by substantial evidence and thus would not be disturbed.
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05230.htm
4 Temmuz 2012 Çarşamba
Independent contractors not entitled to retirement benefits or other fringe benefits
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Independent contractorsnot entitled to retirement benefits or other fringe benefits
Araneo v Town Bd. for Town of Clarkstown, 55AD3d 516
Michael Araneo was the owner, president, and sole employee of a corporation:Michael Araneo, Inc. In 1970 Araneo began performing work for the Town ofClarkstown at the Town dump and on September 15, 1997, on behalf of thecorporation, signed an agreement with the Town providing that the corporationwould perform certain services at the Town's solid waste facility and otherfacilities.
This contract expressly provided that the corporation and its employees wouldbe acting as independent contractors and were not to be considered employees ofthe Town.
Araneo submitted vouchers to the Town Comptroller for payment and the paymentwas generally made to the corporation. The Town did not withhold taxes orinsurance, and that the corporation paid the requisite taxes and insurance onbehalf of Araneo. In addition, the corporation carried liability insurance,maintained its own offices, and that the Town paid the corporation more than anindividual employee would have been paid for the same work. Further, Araneoused “many of his own tools” in performing his work and “was not instructed onhow to perform the work he did for the Town.”
On January 8, 2002, Araneo sued the Town, for a judgment declaring thateffective July 3, 1978 and through and including January 14, 2005, he was aTown employee entitled to all benefits enjoyed by such employees, including butnot limited to, pension rights, health care, vacation time, sick leave, andpersonal time.
The Appellate Division said that “The determination of whether one is anemployee or an independent contractor requires examination of all aspects ofthe arrangement between the parties,” although "the critical inquiry . . .pertains to the degree of control exercised by the purported employer over theresults produced or the means used to achieve the results." Other elementsinclude “assessing control include whether the worker (1) worked at his ownconvenience, (2) was free to engage in other employment, (3) received fringebenefits, (4) was on the employer's payroll and (5) was on a fixedschedule." Significantly, the court said “the fact that a contract existsdesignating a person as an independent contractor is to be considered, but isnot dispositive.
In this instance, said the court, the record plainly establishes that, at alltimes at issue, Araneo was an independent contractor to the Town and not a Townemployee. Consequently, Araneo was held not to be an employee of the Town ofClarkstown at any time from July 3, 1978, to January 14, 2005.
The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07599.htm
Independent contractorsnot entitled to retirement benefits or other fringe benefits
Araneo v Town Bd. for Town of Clarkstown, 55AD3d 516
Michael Araneo was the owner, president, and sole employee of a corporation:Michael Araneo, Inc. In 1970 Araneo began performing work for the Town ofClarkstown at the Town dump and on September 15, 1997, on behalf of thecorporation, signed an agreement with the Town providing that the corporationwould perform certain services at the Town's solid waste facility and otherfacilities.
This contract expressly provided that the corporation and its employees wouldbe acting as independent contractors and were not to be considered employees ofthe Town.
Araneo submitted vouchers to the Town Comptroller for payment and the paymentwas generally made to the corporation. The Town did not withhold taxes orinsurance, and that the corporation paid the requisite taxes and insurance onbehalf of Araneo. In addition, the corporation carried liability insurance,maintained its own offices, and that the Town paid the corporation more than anindividual employee would have been paid for the same work. Further, Araneoused “many of his own tools” in performing his work and “was not instructed onhow to perform the work he did for the Town.”
On January 8, 2002, Araneo sued the Town, for a judgment declaring thateffective July 3, 1978 and through and including January 14, 2005, he was aTown employee entitled to all benefits enjoyed by such employees, including butnot limited to, pension rights, health care, vacation time, sick leave, andpersonal time.
The Appellate Division said that “The determination of whether one is anemployee or an independent contractor requires examination of all aspects ofthe arrangement between the parties,” although "the critical inquiry . . .pertains to the degree of control exercised by the purported employer over theresults produced or the means used to achieve the results." Other elementsinclude “assessing control include whether the worker (1) worked at his ownconvenience, (2) was free to engage in other employment, (3) received fringebenefits, (4) was on the employer's payroll and (5) was on a fixedschedule." Significantly, the court said “the fact that a contract existsdesignating a person as an independent contractor is to be considered, but isnot dispositive.
In this instance, said the court, the record plainly establishes that, at alltimes at issue, Araneo was an independent contractor to the Town and not a Townemployee. Consequently, Araneo was held not to be an employee of the Town ofClarkstown at any time from July 3, 1978, to January 14, 2005.
The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07599.htm
A police force is a semi-military organization and the appointing authority has “great leeway” is determining an appropriate disciplinary penalty
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A police force is a semi-military organization and theappointing authority has “great leeway” is determining an appropriatedisciplinary penaltySmeraldo v Rater, 55AD3d 1298
Timothy J. Smeraldo brought an Article 78 proceedingchallenging the penalty of termination of his employment with the JamestownPolice Department after he was found guilty of conduct that was disrespectfulof a superior officer. Smeraldo contended that the penalty of termination is sodisproportionate to the offense as to be shocking to one's sense of fairness.In addition, Smeraldo alleged that the Hearing Officer improperly relied upon factsthat were not in evidence.
The Appellate Division rejected Smeraldo’s claim thatpenalty imposed was “shocking to one’s sense of fairness. The court said thatit is well established that courts must uphold the disciplinary penalty imposedby an appointing authority unless, as a law, it is an abuse of discretion,citing Kelly v Safir, 96 NY2d 32.
The Appellate Division said that "A police force is aquasi-military organization demanding strict discipline" and "greatleeway” must be accorded to “determinations concerning the appropriatepunishment, for it is the [Chief of Police] . . . who is accountable to thepublic for the integrity of the Department."
In this instance the Hearing Officer found that Smeraldo hadmade a remark in front of several other officers that was disrespectful of asuperior officer. Further, said the court, “the record establishes that[Smeraldo] has a prior disciplinary record, including a 30-day suspension and ademotion in rank that occurred less than one year prior to the present offense.In addition, the decision reports that Smeraldo that settlement agreement withthe Department for the charge resulting in that suspension and demotion,Smeraldo expressly stated that "he will endeavor not to violate any otherDepartment policy in the future" and that there was evidence at thehearing that he had previously been counseled on the issue of makinginappropriate comments, including comments that demonstrated insubordination.
Noting that the settlement agreement was received as evidencein the course of the disciplinary hearing, the Appellate Division concludedthat there was no basis for Smeraldo’s claim that the Hearing Officerimproperly relied upon facts not in evidence.
The full text of the decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07336.htm
===================
A police force is a semi-military organization and theappointing authority has “great leeway” is determining an appropriatedisciplinary penaltySmeraldo v Rater, 55AD3d 1298
Timothy J. Smeraldo brought an Article 78 proceedingchallenging the penalty of termination of his employment with the JamestownPolice Department after he was found guilty of conduct that was disrespectfulof a superior officer. Smeraldo contended that the penalty of termination is sodisproportionate to the offense as to be shocking to one's sense of fairness.In addition, Smeraldo alleged that the Hearing Officer improperly relied upon factsthat were not in evidence.
The Appellate Division rejected Smeraldo’s claim thatpenalty imposed was “shocking to one’s sense of fairness. The court said thatit is well established that courts must uphold the disciplinary penalty imposedby an appointing authority unless, as a law, it is an abuse of discretion,citing Kelly v Safir, 96 NY2d 32.
The Appellate Division said that "A police force is aquasi-military organization demanding strict discipline" and "greatleeway” must be accorded to “determinations concerning the appropriatepunishment, for it is the [Chief of Police] . . . who is accountable to thepublic for the integrity of the Department."
In this instance the Hearing Officer found that Smeraldo hadmade a remark in front of several other officers that was disrespectful of asuperior officer. Further, said the court, “the record establishes that[Smeraldo] has a prior disciplinary record, including a 30-day suspension and ademotion in rank that occurred less than one year prior to the present offense.In addition, the decision reports that Smeraldo that settlement agreement withthe Department for the charge resulting in that suspension and demotion,Smeraldo expressly stated that "he will endeavor not to violate any otherDepartment policy in the future" and that there was evidence at thehearing that he had previously been counseled on the issue of makinginappropriate comments, including comments that demonstrated insubordination.
Noting that the settlement agreement was received as evidencein the course of the disciplinary hearing, the Appellate Division concludedthat there was no basis for Smeraldo’s claim that the Hearing Officerimproperly relied upon facts not in evidence.
The full text of the decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07336.htm
===================
Disqualifying an individual who has intentionally made a false statement of any material fact in his or her application for public employment
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Disqualifying an individual who has intentionally made afalse statement of any material fact in his or her application for publicemployment United States v. Xavier Alvarez, USSC, Docket #11-310
Civil Service Law §50.4, in pertinent part, provides that“The state civil service department and municipal commissions may refuse toexamine an applicant, or after examination to certify an eligible …
“(f) who has intentionally made a false statement of anymaterial fact in his [or her] application; or
“(g) who has practiced, or attempted to practice, anydeception or fraud in his [or her] application, in his examination, or insecuring his [or her] eligibility or appointment….”
Are these provisions still valid in view of the Supreme Court's ruling in United States v Alverez concerning false speech that is protected by the First Amendment?
In a word, yes!
In holding the Stolen Valor Act, 18 U.S.C. §704(b) “faciallyinvalid under the Free Speech Clause of the First Amendment,” Justice Kennedy,writing for the majority, explained: “Permittingthe government to decree [Alvarez's false claim that he had been awarded the Congressional Medal of Honor] to be a criminal offense, whether shoutedfrom the rooftops or made in a barely audible whisper, would endorse governmentauthority to compile a list of subjects about which false statements arepunishable. *
Thatgovernmental power, said the majority, "has no clear limiting principle. Our constitutionaltradition stands against the idea that we need Oceania’s Ministry of Truth.[See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003)]. Were thislaw to be sustained, there could be an endless list of subjects the NationalGovernment or the States could single out."
In contrast, Justice Kennedy pointed out that “Where false claims are made toeffect a fraud or secure moneys or other valuable considerations, say offers ofemployment, it is well established that the Government may restrict speechwithout affronting the First Amendment,” citing Virginia Bd. of Pharmacy,425 U. S., at 771** [emphasis supplied].
Thus it seems clear that the State Civil Service Department or a municipal civil servicecommission may lawfully disqualify an individual for public employment pursuant to CivilService Law §50.4(f) and, or, §50.4(g), consistent with the due process provisionsavailable to the applicant or employee.***.
* Justice Kennedy noted that“The statements [made by Alvarez] do not seem to have been made to secureemployment or financial benefits or admission to privileges reserved for thosewho had earned the Medal.”
** In Virginia the Supreme Courtheld that “fraudulent speech generally falls outside the protections of theFirst Amendment.”
*** §50.4 provides that “ Noperson shall be disqualified pursuant to this subdivision unless he [or she] hasbeen given a written statement of the reasons therefor and afforded anopportunity to make an explanation and to submit facts in opposition to suchdisqualification.
The Alvarez decision is posted on the Internet at:http://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf
Disqualifying an individual who has intentionally made afalse statement of any material fact in his or her application for publicemployment United States v. Xavier Alvarez, USSC, Docket #11-310
Civil Service Law §50.4, in pertinent part, provides that“The state civil service department and municipal commissions may refuse toexamine an applicant, or after examination to certify an eligible …
“(f) who has intentionally made a false statement of anymaterial fact in his [or her] application; or
“(g) who has practiced, or attempted to practice, anydeception or fraud in his [or her] application, in his examination, or insecuring his [or her] eligibility or appointment….”
Are these provisions still valid in view of the Supreme Court's ruling in United States v Alverez concerning false speech that is protected by the First Amendment?
In a word, yes!
In holding the Stolen Valor Act, 18 U.S.C. §704(b) “faciallyinvalid under the Free Speech Clause of the First Amendment,” Justice Kennedy,writing for the majority, explained: “Permittingthe government to decree [Alvarez's false claim that he had been awarded the Congressional Medal of Honor] to be a criminal offense, whether shoutedfrom the rooftops or made in a barely audible whisper, would endorse governmentauthority to compile a list of subjects about which false statements arepunishable. *
Thatgovernmental power, said the majority, "has no clear limiting principle. Our constitutionaltradition stands against the idea that we need Oceania’s Ministry of Truth.[See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003)]. Were thislaw to be sustained, there could be an endless list of subjects the NationalGovernment or the States could single out."
In contrast, Justice Kennedy pointed out that “Where false claims are made toeffect a fraud or secure moneys or other valuable considerations, say offers ofemployment, it is well established that the Government may restrict speechwithout affronting the First Amendment,” citing Virginia Bd. of Pharmacy,425 U. S., at 771** [emphasis supplied].
Thus it seems clear that the State Civil Service Department or a municipal civil servicecommission may lawfully disqualify an individual for public employment pursuant to CivilService Law §50.4(f) and, or, §50.4(g), consistent with the due process provisionsavailable to the applicant or employee.***.
* Justice Kennedy noted that“The statements [made by Alvarez] do not seem to have been made to secureemployment or financial benefits or admission to privileges reserved for thosewho had earned the Medal.”
** In Virginia the Supreme Courtheld that “fraudulent speech generally falls outside the protections of theFirst Amendment.”
*** §50.4 provides that “ Noperson shall be disqualified pursuant to this subdivision unless he [or she] hasbeen given a written statement of the reasons therefor and afforded anopportunity to make an explanation and to submit facts in opposition to suchdisqualification.
The Alvarez decision is posted on the Internet at:http://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf
Courts will defer to an administrative decision made by an agency pursuant to its authority if it acted rationally within its area of expertise
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Courts will defer to an administrative decision madeby an agency pursuant to its authority if it acted rationallywithin its area of expertise Roberts v Gavin, 2012 NY Slip Op 05239, AppellateDivision, First Department
Lillian Roberts, Executive Director of District Council 37,AFSCME, AFL-CIO [DC 37], petitioned Supreme Court seeking an order annullingthe Personnel Review Board of the New York City Health and HospitalsCorporation [PRB] determination the Health and Hospitals Corporation [HHC]decision to restructure its layoff units in response to a recent financialcrisis.
Supreme Court dismissed DC 37’s petition; the AppellateDivision affirmed the lower court’s ruling.
HHC, which initially had a single corporation-wide layoffunit that included all of its facilities throughout New York City, subsequentlycreated smaller layoff units based on individual hospitals and health carefacilities within HHC. In 2009, in response to financial pressures faced by theCity, HHC again restructured its layoff units by creating eighteen additional,smaller, layoff units within the existing hospital and medical centers that hadpreviously been designated as the layoff units. HHC then announced plans toeither close or reduce staff at the clinics and programs designated as the newlayoff unit, which would affect about 87 HHC employees.
After noting that Supreme Court “should not have dismissedthe proceeding as time-barred,” the Appellate Division considered the merits ofDC 37’s petition.
DC 37’s contended that PRB’s action was arbitrary andcapricious.
The Appellate Division said that an administrative body’s act oromission is arbitrary if it "is without sound basis in reason and isgenerally taken without regard to the facts," citing Pell v Board of Educ.of Union Free School Dist., 34 NY2d 222. In contrast, said the court, “Where a rational basis existsfor an agency's action, a court may not substitute its judgment for that of theagency, and the agency's determination, acting pursuant to legal authority andwithin its area of expertise, is entitled to deference.”
The Appellate Division said that DC 37 failed to show thatPRB's upholding HHC's creation of additional layoff units was arbitrary orcapricious, or affected by an error of law, pointing out that HHC actedconsistent with its past practice of designating hospital programs as layoff units.
Citing the relevant HHC Rules, which, in pertinent part,sets out HHC’s the authority to amend its own rules and regulations and which,in particular, provides that HHC "may by rule designate an individualfacility or division of any facility of [HHC] as separate units forlayoff or demotion under this rule," the court concluded that the HHCRules explicitly grant HHC the discretion to designate programs and clinics ofHHC facilities as layoff units.
At the hearing, HHC explained that the closing of the clinicand hospital-based programs was necessary to provide continuity of patient carein light of the budget deficit crisis facing the City. And in its decision, PRBfound that HHC's actions were predicated on budgetary deficits that requiredclosure and/or consolidation of programs and clinics in order to minimize theimpact on patient care. PRB's decision was consistent with its previousprecedent that "a presumption of regularity exists in the establishment ofseparate layoff units, until it is demonstrated that the layoffs werenot done in accordance with a rational plan" (PRB Decision No. 682 [May27, 1992] [emphasis in original]).
Noting that "A public employer may abolish civilservice positions for the purpose of economy or efficiency," the courtrejected DC 37’s claim that the creation of the new layoff units violated theseniority and displacement rights of certain employees, commenting “although some longtime employees may losetheir jobs, and newer employees may not,” in the absence of any nonconclusoryshowing of bad faith, it declined to disturb HHC's determination establishingthe additional layoff unit.
Recognizing that there may have been a different way for HHCto structure its layoff plan, the Appellate Division said that it could not saythat the agency acted in an arbitrary or capricious manner as "a court'sopinion that a particular outcome is not fair or is not in the interests ofjustice is not sufficient to overcome the deference to be afforded an agencyacting rationally within its area of expertise" and declined to substituteits judgment as to how HHC “should implement personnel decisions whendetermining how best to provide health care to the people of New York City” asto do so “would be an unwarranted intrusion into the managerial prerogative ofHHC, which acted within its rule-making authority.”
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05239.htm
Courts will defer to an administrative decision madeby an agency pursuant to its authority if it acted rationallywithin its area of expertise Roberts v Gavin, 2012 NY Slip Op 05239, AppellateDivision, First Department
Lillian Roberts, Executive Director of District Council 37,AFSCME, AFL-CIO [DC 37], petitioned Supreme Court seeking an order annullingthe Personnel Review Board of the New York City Health and HospitalsCorporation [PRB] determination the Health and Hospitals Corporation [HHC]decision to restructure its layoff units in response to a recent financialcrisis.
Supreme Court dismissed DC 37’s petition; the AppellateDivision affirmed the lower court’s ruling.
HHC, which initially had a single corporation-wide layoffunit that included all of its facilities throughout New York City, subsequentlycreated smaller layoff units based on individual hospitals and health carefacilities within HHC. In 2009, in response to financial pressures faced by theCity, HHC again restructured its layoff units by creating eighteen additional,smaller, layoff units within the existing hospital and medical centers that hadpreviously been designated as the layoff units. HHC then announced plans toeither close or reduce staff at the clinics and programs designated as the newlayoff unit, which would affect about 87 HHC employees.
After noting that Supreme Court “should not have dismissedthe proceeding as time-barred,” the Appellate Division considered the merits ofDC 37’s petition.
DC 37’s contended that PRB’s action was arbitrary andcapricious.
The Appellate Division said that an administrative body’s act oromission is arbitrary if it "is without sound basis in reason and isgenerally taken without regard to the facts," citing Pell v Board of Educ.of Union Free School Dist., 34 NY2d 222. In contrast, said the court, “Where a rational basis existsfor an agency's action, a court may not substitute its judgment for that of theagency, and the agency's determination, acting pursuant to legal authority andwithin its area of expertise, is entitled to deference.”
The Appellate Division said that DC 37 failed to show thatPRB's upholding HHC's creation of additional layoff units was arbitrary orcapricious, or affected by an error of law, pointing out that HHC actedconsistent with its past practice of designating hospital programs as layoff units.
Citing the relevant HHC Rules, which, in pertinent part,sets out HHC’s the authority to amend its own rules and regulations and which,in particular, provides that HHC "may by rule designate an individualfacility or division of any facility of [HHC] as separate units forlayoff or demotion under this rule," the court concluded that the HHCRules explicitly grant HHC the discretion to designate programs and clinics ofHHC facilities as layoff units.
At the hearing, HHC explained that the closing of the clinicand hospital-based programs was necessary to provide continuity of patient carein light of the budget deficit crisis facing the City. And in its decision, PRBfound that HHC's actions were predicated on budgetary deficits that requiredclosure and/or consolidation of programs and clinics in order to minimize theimpact on patient care. PRB's decision was consistent with its previousprecedent that "a presumption of regularity exists in the establishment ofseparate layoff units, until it is demonstrated that the layoffs werenot done in accordance with a rational plan" (PRB Decision No. 682 [May27, 1992] [emphasis in original]).
Noting that "A public employer may abolish civilservice positions for the purpose of economy or efficiency," the courtrejected DC 37’s claim that the creation of the new layoff units violated theseniority and displacement rights of certain employees, commenting “although some longtime employees may losetheir jobs, and newer employees may not,” in the absence of any nonconclusoryshowing of bad faith, it declined to disturb HHC's determination establishingthe additional layoff unit.
Recognizing that there may have been a different way for HHCto structure its layoff plan, the Appellate Division said that it could not saythat the agency acted in an arbitrary or capricious manner as "a court'sopinion that a particular outcome is not fair or is not in the interests ofjustice is not sufficient to overcome the deference to be afforded an agencyacting rationally within its area of expertise" and declined to substituteits judgment as to how HHC “should implement personnel decisions whendetermining how best to provide health care to the people of New York City” asto do so “would be an unwarranted intrusion into the managerial prerogative ofHHC, which acted within its rule-making authority.”
The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05239.htm
Take the Next Important Step to Landing that Job – Step 6: Select the Right Job
To contact us Click HERE
Congratulations! You completed steps one through five of the job search: every day you chose to have a good attitude, you inventoried your unique skills and accomplishments identifying and learning to articulate your competitive advantage. You identified your target companies, and you developed and polished your marketing materials. You successfully conducted the search and nailed the interview. They just called and made you an offer. The money is good; the commute is okay so you are ready to say “Yes, when do you want me to start?” Not so fast.
Step 6 – Select
Remember the proverbial frying pan into the fire? You want to make sure that this job and company match the criteria you identified in step 3 and is a place where the “you” that you identified in Step 2 will thrive. Don’t end up making a mistake by taking a job doing work you don’t like, for the worst boss ever, in an environment where you will not thrive.
Let’s take a look at some of the criteria you should consider and questions you should ask the hiring manager or yourself before you know this is the right job.
I’ll Take Anything at This Point
Some of you may be thinking what I have heard other job seekers say, “I’ll take any job at this point”. Don’t do that to yourself. Take a lesson from one dear friend of mine. He took the first job that came along although he saw caution flags flying. Three months later he was on the job market again and had to start over with Step 1 – Attitude. In the long run it took him longer to find the ultimate job than if he had passed the chancy job over and just kept looking.
Think back to the worst boss or the worst company you ever worked for (most of us have those). If this new job is as bad as those, then you will be miserable. There is a plan for you, one that will prosper you and not harm you, one that will give you hope and a future. Why would you settle for anything less?
Understand the Opportunity
When you receive an offer, you want to be 99.9% sure you understand the opportunity that is being offered. You understand the salary, the benefits, and of course the commute. What other things do you need to know up front?
Let’s use one example. If you will be traveling on company business, even periodically, you want to understand the policies on travel expenses. 1) Does the company require you to use your own credit card? If so, that means you have to always have enough available credit for any last minute trips your company decides you need to make. 2) Do you get a company credit card? In most cases the company issues a company credit card to travelers but the bill comes to the employee’s home to be paid. In this case you want to understand the average time it takes for the company to process expense reports and get the reimbursement check to the employee. Some companies are notorious for talking a full month or more getting the reimbursement to the employee, in essence floating a loan on the employee’s back yet companies do not reimburse late payment fees. This is one example of additional information you need to understand about the opportunity.
Be sure also to measure the opportunity against the requirements you established at the beginning of your search.
Is This Job Right For You?
In Step 2 you took an inventory of you. As part of that process you identified your personality (the way you were made). You reviewed your prior job history and identified what you liked best and least about your former companies, bosses, and the positions you held.
Personality
Let’s look at a few examples of evaluating if the opportunity is a match for your personality. The two options for the first Myers Brigg Type Indicator and Keirsey Temperament Sorter are E for Extrovert and I for Introvert. These indicators represent the source of energy for the individual, extroverts getting their energy from being around people and Introverts recharging their batteries by being alone.
If you are an extrovert, working from home could drive you crazy, like a cat in a room of rocking chairs; you can’t wait to get out and around people. If you are an introvert, it would drain you to work constantly around people with frequent interruptions and no time to yourself.
The last indicator within Myers Brigg is J or P. People with the J indicator like to have things orderly where people with a P indicator like to “wing it”. If you are a J and are asked to work in a company that has no written processes, no on-boarding orientation, and frequently changes in direction, you will feel adrift. If instead you are P and the company is buttoned up tight, you could feel stifled.
Evaluate the work environment and be sure it matches your personality.
Prior Job History
In Step 2, you evaluated your prior jobs to determine what you want in a company and in a boss so you can flourish. Leverage that information. Measure the company, the boss, and the position you are being offered against these identified qualities.
Negotiate!
The best time to get the right salary is when you come into the company. It is harder to get equity increases once you are working there. Most hiring managers do not give their best and final offer initially; on the other hand they do not low ball the offer either. Most times there is a little room for negotiations.
There are other things besides salary to ask for in the negotiation process as well. If you want to pursue a professional certificate for instance, ask if the company will cover the costs of the preparation, exam and other fees. If you need to work from home occasionally, that ability may be up for negotiation, so can the start or end time (to avoid the rush hours or to pick a child up from daycare), extra vacation days, etc. Whatever you both decide during negotiations be sure to get the agreement in writing.
Are You at Peace About Taking the Position?
You will experience as amazing peace if this is the right position and company for you. Check your “peace-a-meter” to be sure you don’t have any negative or nagging thoughts about taking the job. If you do, you need to evaluate them and make the right thought-out decision, not a decision out of desperation.
Take the job that is meant for you, one in which you will flourish.
Last Article in the Series
You may not want to hear this the moment you land your new job, but your new job is not your last. The average being quoted for the number of jobs a person will have in a lifetime these days is 12 and the number of careers is 4 in a lifetime. In the next installment of the “Take the Next Important Step to Landing that Job” series Judi Adams Sanek, Senior Job Search Coach of RightChanges.biz will cover “Action Items to Take While Working to Make the Next Transition Easier and Faster”.
Copyright: The 6 Steps of a Job Search are copyrighted by Crossroads Career Services.
Step 6 – Select
Remember the proverbial frying pan into the fire? You want to make sure that this job and company match the criteria you identified in step 3 and is a place where the “you” that you identified in Step 2 will thrive. Don’t end up making a mistake by taking a job doing work you don’t like, for the worst boss ever, in an environment where you will not thrive.
Let’s take a look at some of the criteria you should consider and questions you should ask the hiring manager or yourself before you know this is the right job.
I’ll Take Anything at This Point
Some of you may be thinking what I have heard other job seekers say, “I’ll take any job at this point”. Don’t do that to yourself. Take a lesson from one dear friend of mine. He took the first job that came along although he saw caution flags flying. Three months later he was on the job market again and had to start over with Step 1 – Attitude. In the long run it took him longer to find the ultimate job than if he had passed the chancy job over and just kept looking.
Think back to the worst boss or the worst company you ever worked for (most of us have those). If this new job is as bad as those, then you will be miserable. There is a plan for you, one that will prosper you and not harm you, one that will give you hope and a future. Why would you settle for anything less?
Understand the Opportunity
When you receive an offer, you want to be 99.9% sure you understand the opportunity that is being offered. You understand the salary, the benefits, and of course the commute. What other things do you need to know up front?
Let’s use one example. If you will be traveling on company business, even periodically, you want to understand the policies on travel expenses. 1) Does the company require you to use your own credit card? If so, that means you have to always have enough available credit for any last minute trips your company decides you need to make. 2) Do you get a company credit card? In most cases the company issues a company credit card to travelers but the bill comes to the employee’s home to be paid. In this case you want to understand the average time it takes for the company to process expense reports and get the reimbursement check to the employee. Some companies are notorious for talking a full month or more getting the reimbursement to the employee, in essence floating a loan on the employee’s back yet companies do not reimburse late payment fees. This is one example of additional information you need to understand about the opportunity.
Be sure also to measure the opportunity against the requirements you established at the beginning of your search.
Is This Job Right For You?
In Step 2 you took an inventory of you. As part of that process you identified your personality (the way you were made). You reviewed your prior job history and identified what you liked best and least about your former companies, bosses, and the positions you held.
Personality
Let’s look at a few examples of evaluating if the opportunity is a match for your personality. The two options for the first Myers Brigg Type Indicator and Keirsey Temperament Sorter are E for Extrovert and I for Introvert. These indicators represent the source of energy for the individual, extroverts getting their energy from being around people and Introverts recharging their batteries by being alone.
If you are an extrovert, working from home could drive you crazy, like a cat in a room of rocking chairs; you can’t wait to get out and around people. If you are an introvert, it would drain you to work constantly around people with frequent interruptions and no time to yourself.
The last indicator within Myers Brigg is J or P. People with the J indicator like to have things orderly where people with a P indicator like to “wing it”. If you are a J and are asked to work in a company that has no written processes, no on-boarding orientation, and frequently changes in direction, you will feel adrift. If instead you are P and the company is buttoned up tight, you could feel stifled.
Evaluate the work environment and be sure it matches your personality.
Prior Job History
In Step 2, you evaluated your prior jobs to determine what you want in a company and in a boss so you can flourish. Leverage that information. Measure the company, the boss, and the position you are being offered against these identified qualities.
Negotiate!
The best time to get the right salary is when you come into the company. It is harder to get equity increases once you are working there. Most hiring managers do not give their best and final offer initially; on the other hand they do not low ball the offer either. Most times there is a little room for negotiations.
There are other things besides salary to ask for in the negotiation process as well. If you want to pursue a professional certificate for instance, ask if the company will cover the costs of the preparation, exam and other fees. If you need to work from home occasionally, that ability may be up for negotiation, so can the start or end time (to avoid the rush hours or to pick a child up from daycare), extra vacation days, etc. Whatever you both decide during negotiations be sure to get the agreement in writing.
Are You at Peace About Taking the Position?
You will experience as amazing peace if this is the right position and company for you. Check your “peace-a-meter” to be sure you don’t have any negative or nagging thoughts about taking the job. If you do, you need to evaluate them and make the right thought-out decision, not a decision out of desperation.
Take the job that is meant for you, one in which you will flourish.
Last Article in the Series
You may not want to hear this the moment you land your new job, but your new job is not your last. The average being quoted for the number of jobs a person will have in a lifetime these days is 12 and the number of careers is 4 in a lifetime. In the next installment of the “Take the Next Important Step to Landing that Job” series Judi Adams Sanek, Senior Job Search Coach of RightChanges.biz will cover “Action Items to Take While Working to Make the Next Transition Easier and Faster”.
Copyright: The 6 Steps of a Job Search are copyrighted by Crossroads Career Services.
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