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Tuesday, June 21, 2011

Exhausting administrative remedies

Exhausting administrative remedies
Jardim v PERB, 265 AD2d 329

The Jardim case demonstrates the importance of exhausting one's administrative remedies before initialing litigation challenging an administrative determination.

A Public Employment Relations Board administrative law judge [ALJ] dismissed improper practices charges filed by Leroy Jardim. Jardim claimed that he had been subjected to disciplinary action as a result of his performing his union duties.

In effect, Jardim alleged that he had been disciplined for performing “protected activities” within the meaning of the Taylor Law -- an unfair labor practice. The ALJ decided that the disciplinary action had not been taken against him because of his union activities.

Jardim then filed a petition with a State Supreme Court appealing the ALJ's determination. This proved to be a fatal procedural error. His petition was dismissed because the court determined that Jardim had not exhausted his administrative remedies. It seems that Jardim elected to file a petition appealing the ALJ's decision in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules instead of filing his “exceptions” to the ALJ's ruling with PERB.

The Appellate Division, Second Department affirmed the lower court's ruling. The court said that “administrative review” was available to Jardim. Thus, the dismissal of his petition by the Supreme Court was appropriate.

The court pointed out that PERB's rules provided for such an administrative review, citing Section 204.10 [4 NYCRR 204.10] of the rules. Section 204.10(a) permits a party to appeal a determination by an ALJ to the board, provided such an appeal -- referred to as “exceptions” to the ALJ's determination -- is filed within 15 working days after the individual has received the ALJ's decision.

Section 204.10 (b)(4) of the rules requires the party filing exceptions to specifically state them in the appeal. Any basis for an exception to a “ruling, finding, conclusion or recommendation” made by the ALJ “which is not specifically urged is waived”.

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