Coba Alert

Legal Action vs Dept/County Re EPD's and Sick Leave Notes

December 29, 2022

Dear COBA Members;

As you all know, COBA filed a Class Action Grievance as well as a request for a Temporary Restraining Order against the Dept/County in State Supreme Court for blanketly denying all use of Emergency Personal Time as directed in a Commissioner's Order that was extended until January 2nd, 2023. At close of business on Tuesday 12/27 the State Supreme Court issued the Restraining Order in our favor but also, at the request of the County, directed that COBA must secure a Bond in the amount of ($500,000.00) Five Hundred Thousand dollars as surety against their claimed loss of overtime monies should they prevail at Arbitration. COBA completely disagrees with the issue of having to secure a Bond for numerous reasons, and as such we petitioned the Court to reconsider or modify that portion of the Order related to the TRO.

While this was going on, the County also appealed the TRO in NYS Appellate Division, Second Department in Brooklyn.

Earlier today, the County's Appeal of the TRO was to be heard in Brooklyn Appellate Court but that Court allowed a delay in that proceeding while our petition to reconsider or modify the Bond issue and the County's petition to deny that modification played out in Supreme Court.

In basic terms, both us and the County's Attorneys sat on the bubble for the better part of this afternoon awaiting action from Supreme Court. By close of business today, Supreme Court did not respond to either our petition nor the County's. This could be due to a Holiday staffing issue or some other reason as yet unknown to us. Since, the Supreme Court has yet to take action, the Appellate Court in Brooklyn, again at close of business today, directed that the County's Appeal will be heard tomorrow in Brooklyn. Meanwhile we remain on the bubble with Supreme Court awaiting action from them.

While all this plays out, the Order stopping any use of EPD's remains in effect and the clock is ticking to its expiration on Monday January 2nd.


As for the Sick Leave Issue directing Doctor's Notes for any use of Sick Time:

Again, this is a clear violation of the Taylor Law as this is a Mandatory Subject of Negotiation. As such, COBA filed a PERB (NYS Public Employee Relations Board) charge against the County today, as well as an additional request for Injunctive Relief while that case proceeds. Requesting a TRO in a PERB case is different than with a Class Action Grievance or a normal court case, as under NYS Law, PERB must approve the application for a TRO before that application can proceed to Supreme Court for action. This process can take up to 2 weeks for PERB to process before we know if we can proceed to Supreme Court or not.

What this all means is that we are in a holding pattern for both the immediate TRO on the EPD issue and direction from PERB on a TRO for the Sick Leave Notes issue.

We know that this can be a very frustrating process waiting for the wheels of justice to move, but unfortunately it is the only legal courses of action when dealing with both Supreme Court on one hand and the Taylor Law which we are all bound to on the other.

Again, we must stress to all members that all Departmental Orders must be followed, even those pending legal action. Do not leave yourself unprotected.

Make sure to keep accurate account of any time used to obtain a Dr's note and any expenses incurred in the process of obtaining a note. This to be used in our legal action against the County/Dept for proper compensation purposes for our members.

We are in continuous discussion with our Labor Attorneys regarding further legal action to take against the County/Dept regarding these issues and will keep you all informed as this whole thing unfolds.

Brian Sullivan, COBA President


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