In Dispute Over Retirement Requirements, New York State Supreme CourtJudge’s Decision Says Collective Bargaining Agreement’s ‘Years of Service’ Language Is ‘Ambiguous’ and Open to Multiple Interpretations

New York, New York June 30, 2004 – In response to an Article 78 lawsuit filed by The Correction Officers’ Benevolent Association, on behalf of New York City Correction Officer, David McGarrigle, against the City of New York , State Supreme Court Justice Rosalyn Richter has ruled that the New York City Employees’ Retirement System (NYCERS), must re-calculate Officer McGarrigle’s pension benefit, prospectively and retroactively, so as to include the calculation of “final average salary”, the longevity payments earned by him upon his completion of five and ten years of correction service.

In 2001, after having served as a Correction Officer for nineteen years and three months, Mr. McGarrigle purchased nine months of prior military service rendered from November 1974 through August 1975. On August of 2001, Mr. McGarrigle retired from the Department of Correction with the requisite twenty years of service, nine months of which constituted “bought back” prior military service. However, in calculating Mr. McGarrigle’s “wages earned”, for the purpose of determining his “final average salary”, NYCERS did not include the longevity payments earned by Mr. McGarrigle upon reaching his fifth and tenth years of correction service. In his lawsuit, Mr. McGarrigle challenged NYCERS’ decision to exclude the longevity payments, and contended that NYCERS’ determination violated the provisions under Retirement and Social Security Law as well as the Pension Impairment Clause of the New York State Constitution. NYCERS argued that the non-pensionability of the longevity increments was mandated by the collective bargaining agreement between the Correction Officers’ Benevolent Association, Mr. McGarrigle’s union, and the City of New York.

According to Mr. McGarrigle’s attorney, Mercedes Maldonaldo, of Isaacs, Devasia, Castro & Wien LLP, “The central issue at hand in this case was whether the language in the collective bargaining agreement could diminish a Correction Officer’s right to have military service credit and other types of credited service count towards the years of service required for pensionabilty of longevity earnings. The judge confirmed that a Correction Officer can in fact use credited service such as military service without forfeiting the pensionabilty of their longevity earnings. This decision may have widespread implications among other uniformed unions who have similar language in their collective bargaining agreements.”

“This decision is a victory for all New York City Correction Officers,” said Norman Seabrook, president of the 9,000 member Correction Officers’ Benevolent Association. “The City has tried unsuccessfully to manipulate the language in our collective bargaining agreement to reduce our officers’ pension benefits. This union will continue to look after our members’ financial interests.”

The city now has 30 days to appeal the court’s decision.

New York, New York April 1, 2004 – In response to a lawsuit filed by two Rockland County Correction Officers, State Supreme Court Justice William E. Sherwood has ruled that the Rockland County Sheriff’s Department must continue to provide 207-c benefits to correction officer Zane Arok, who was injured while participating in the mandatory Defensive Tactics and Training Course, a self-defense program designed to prepare correction officers for dealing with problematic inmates. The Sheriff’s Department settled the lawsuit with the other correction officer, Maureen Cawley, who was injured while trying to control a disruptive inmate.

According to the complaint filed in New York State Supreme Court in August of 2003, Joey Jackson, of Isaacs, Devasia, Castro & Wien LLP, argued that the Rockland County Sheriff’s Department ‘arbitrarily and capriciously’ denied veteran correction officers Zane Arok and Maureen Cawley Section 207-c benefits, after they incurred work-related injuries. The purpose behind Section 207-c is to compensate specified municipal employees for injuries incurred in the performance of special work related to heightened risks and duties.

“This decision is a victory for all Rockland County correction officers,” said William Hickey, president of the Correction Officers Benevolent Association of Rockland County. “They refused to give these two veteran officers the benefits which they were clearly entitled to and they have needlessly put us at impasse in collective bargaining negotiations for a new contract.”

Commenting on the legal implications stemming from Judge Sherwood’s decision, Mr. Jackson said, “Clearly the incident involving Ms. Cawley was a textbook example of why Section 207-c benefits were created in the first place; to protect municipal employees with dangerous job responsibilities.”

Mr. Jackson continued, “Even more significant though, is that Judge Sherwood clarified that when a municipal employee is participating in an employment required self-defense course, that employee remains under the auspices of the employer and in this case, it was the Sheriff’s Department.”

Rockland County correction officers have been working without a contract since December of 2000.

Commission Says Female Applicants for Bridge Painter Position Were More Qualified Than the Men Actually Hired

New York, New York September 17, 2003 – Following charges of discrimination filed in May of 2002, by the Structural Steel and Bridge Painters of Greater New York, Local Union 806, and four female Bridge Painters, the Equal Employment Opportunity Commission (EEOC) has found reasonable cause to believe the New York City Department of Transportation discriminated against four female applicants for the position of Bridge Painter. The women and Local Union 806, their union, alleged that the Department of Transportation refused to hire female applicants referred by Local 806 to the DOT for the position of Bridge Painter and instead, hired less qualified male applicants.

“This decision confirms what we’ve known for years,” said Local 806 Business Representative, Angelo Serse. “There is no place for discrimination of any kind, and the fact that it’s a municipal agency makes it even more disgraceful. Hopefully, this ruling will pave a path of employment opportunities for many other qualified female Bridge Painters in the future.”

The charges alleged that in each year since 1998 the Department of Transportation interviewed for Bridge Painter positions and, during that time, the four women submitted resumes as applications. In 1999, no female applicant was granted an interview. In 2000, only one of the women was interviewed. She was not hired and was also the only female interviewed for a Bridge Painter position. In 2001, again, only one female applicant was interviewed and she too was not hired.

At the time of their applications, all four women had been employed as Bridge Painters in the private sector for several years, were graduates of certified apprenticeship program and met the DOT’s requirement of sixty months experience. According to the Complainants, eight newly hired, male employees were not apprenticeship program graduates and at least one male employee did not have sixty months of experience. The EEOC agreed that the four women were more qualified than some men actually hired stating that “the record shows that [the Complainants are] more qualified than at least three of the males hired…”

One Complainant also alleged that after learning that she would not be interviewed in 2000, she called the DOT’s personnel office and was told that she would not be interviewed because she did not have a commercial driver’s license. Although such a license is required for the Bridge Painter position, the Complainants alleged that the DOT hired thirteen male Bridge Painters in 2000, that at least three of them did not possess the license when hired, that these men were given a grace period to obtain the license during which they were permitted to work at full pay and benefits and that no female applicant to the Bridge Painter position has ever been afforded this opportunity. In fact, in the history of the DOT, no female has ever been employed in the Bridge Painter civil service title.

The EEOC’s decision includes an invitation to the parties to engage in conciliation. According to the attorney representing Local Union 806 and the four female Bridge Painters, Howard Wien, of Isaacs, Devasia, Castro & Wien LLP, a demand for placement, as well as salary and benefits back to the date the complainants submitted their resumes, was filed with the EEOC immediately after the reasonable cause determination was made.

COBA President Norman Seabrook Claims DOC Commissioner Horn ‘Vindictively Retaliated’ Against COs After COBA Called For the Ouster of Commissioner Horn

New York, New York August 22, 2003 – Norman Seabrook, president of the 8,400-member New York City Correction Officers’ Benevolent Association (COBA), yesterday filed a federal complaint in United States Southern District Court against the New York City Department of Correction, alleging that the Commissioner of the Department of Correction, Martin Horn, vindictively retaliated against his members by filing disciplinary charges against them after they were unable to report for duty on the day of the blackout and the next day, August 15, 2003.

According to the federal complaint, many correction officers who, like most of New York City workers, were unable to report for work on Thursday evening and on Friday due to the massive blackout, have already been notified by the DOC that the DOC intends to slap them with a disciplinary charge of Absent Without Leave (“AWOL”). No other agency in the City of New York other than DOC has filed disciplinary charges against employees who were unable to report for duty during the blackout. These disciplinary charges came in the wake of Mr. Seabrook’s call for Commissioner Horn’s termination for jeopardizing the safety and security of correction officers by instituting layoffs in May 2003.

“I have a fiduciary responsibility to protect the safety of 8,400 New York City correction officers. The fact of the matter is that since Commissioner Horn commenced these dangerous layoffs, there has been a 20% increase in attacks on correction officers. Of the 315 correction jobs lost, at least 84 of the eliminated positions involved direct supervision of inmates,” Mr. Seabrook said. “I also have a duty to communicate to every correction officer and inform them that their union will not sit by idly while their lives at risk. Clearly, by slapping these officers with ludicrous charges of being “AWOL”, during the worst blackout in United States history, the commissioner has sunk to a new low.”

Mr. Seabrook continued, “Instead of vindictively retaliating against me and my members, for exercising our constitutional rights to free speech, Commissioner Horn should focus on protecting the well being of the dedicated men and women who boldly protect the public from society’s worst criminals.”

Mr. Seabrook, on behalf of COBA, filed the complaint in federal court as the charges allege that the DOC violated Mr. Seabrook’s First Amendment rights under the United States Constitution and the DOC violated the rights of COBA members to equal protection under the law.

Correction Officers Who Were Suspended for Failing to Detect Contraband at the Queens Detention Complex Will Be Fully Reimbursed for Time Lost

New York, New York July 30, 2003 – New York City’s Civil Service Commission unanimously reversed an Administrative Law Judge’s decision and awarded New York City Correction Officers Keith Morgan and Patricia Jordan back pay for time lost during their suspensions of 45 days and 35 days, respectively.

The two veteran correction officers, who serve in the Queens Detention Complex (QDC), were accused of allegedly failing to detect the introduction of an automatic pistol that ultimately found its way into the hands of an inmate. Correction Officer Morgan had been the housing area officer responsible for searching the inmates and Correction Officer Jordan had been the package room officer responsible for searching their packages.

According to the Department of Correction, the two officers failed to detect the gun. The DOC also contended that Officer Jordan was “tired and therefore was unable to perform her job efficiently.” Despite the fact that the DOC acknowledged that it was possible for the gun to get in through intake or by another visitor, the DOC maintained that it was impossible for the gun to have entered the facility the day before. The DOC argued that the gun entered the facility as an accident because Officer Jordan did not properly inspect the inmate’s girlfriend’s package, where the gun had been stashed and because Officer Morgan was “bored with his job and lacked concern for his duties and therefore was performing them inefficiently.”

At the Civil Service Commission hearing, the correction officers’ attorney, Joey Jackson, of Isaacs, Devasia, Castro & Wien LLP, argued that the DOC’s charges were flawed for a number of reasons. First, Mr. Jackson asserted that the only evidence against the two officers was the inmate’s own self-serving statement claiming that the gun was in one of his shoes. Second, Mr. Jackson noted that the inmate’s girlfriend had denied to the officers that she was carrying a gun. Furthermore, Mr. Jackson noted that the Supervising Investigator for the Department of Investigation interviewed the inmate and at no point during the interview did the inmate claim that his girlfriend had brought the gun or that he had asked her to; the inmate was arrested and charged with promoting contraband, yet no charges were brought against his girlfriend.

After a detailed review of the evidence presented, the Civil Service Commission reversed the determination by the ALJ and the Department of Correction, noting that the inmate’s testimony was the only evidence against Officers Jordan and Morgan. Furthermore, they noted that “there was no causal link between the officers and the gun….and that the mere presence alone is not enough to conclude that the two correction officers are at fault for the gun’s presence.”

Commenting on the commission’s decision, Norman Seabrook, reelected president of the Correction Officers’ Benevolent Association for a third consecutive term said, “This case was without merit from the beginning. These two veteran officers have a combined 30 years of experience with the DOC and they never have been disciplined or reprimanded for allowing contraband into the institution. Instead of trying to find fault with these officers, the DOC should recognize these two veterans for their continuous dedication and professionalism that they bring to the Department.”