Challenging arbitration awards

Challenging arbitration awards

Carroll v Perkle, Appellate Division, 296 AD2d 755, 756, lv dismissed 98 NY2d 764)

Judicial review of an arbitration award has been statutorily limited by Article 75 of the Civil Practice Law and Rules [CPLR]. Essentially an arbitration award stands unless the court determines that one or more defects in the process have been demonstrated:

1. There was corruption, fraud or misconduct in procuring an award;

2. The arbitrator was not impartial;

3. The arbitrator exceeded his or her authority;

4.the procedures set out in Article 75 were not followed.

In addition to these statutory reasons for vacating the arbitration award, the courts have declared awards found to violate a strong public policy to be null and void.

Challenges to a §3020-a disciplinary decision issued are processed pursuant to Article 75 of the CPLR.[1]

In Carroll, however, the Appellate Division adopted a different standard of review in considering a dismissed employee's effort to vacate an Education Law Section 3020-a disciplinary arbitration award.

Citing Matter of Bernstein [Norwich City School Dist. Bd. Of Education], 282 AD2d 70, the Appellate Division said:

Where, as here, the parties are forced to engage in compulsory arbitration, judicial review under CPLR Article 75 requires that the "award be in accord with due process and supported by adequate evidence in the record."

Accordingly, the Appellate Division concluded, the applicable standard for review of the arbitration award in Carroll's case is whether there was substantial evidence in the record to establish the employee's guilt with respect to the charges levied against him. The court also pointed to CPLR Section 7803[2] as authority to adopt a "substantial evidence" standard in appeals from a §3020-a determination. In the words of the court:

[W]e must determine "whether there is a rational basis in [the whole record] for the findings of fact supporting the [Hearing Panel's recommendation],"

citing 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176.

Christopher Carroll was a tenured guidance counselor. He had 19 years of service with the Rondout Valley CSD. As a guidance counselor he was responsible for, among other things, creating individualized academic plans for students, planning students' courses for the upcoming academic year, analyzing student report cards to determine whether students passed, adjusting academic plans if students failed, and performing annual reviews of student records.

After several students failed to graduate, the Board of Education filed Section 3020-a disciplinary charges against Carroll alleging that he failed to maintain required records, he neglected to provide required remedial assistance for students who failed a Regents Competency Test; he failed to schedule students for required courses; and he falsified a student's record.

The Hearing Panel found Carroll guilty of some, but not all, of the charges. It then determined that under the circumstances, dismissal was the appropriate penalty to be imposed. Carroll was terminated from his position.

Carroll filed a motion to vacate the arbitration award pursuant to Article 75. Supreme Court, relying on CPLR §7511, dismissed his petition, finding that disciplinary arbitration panel neither exceeded its power nor executed an imperfect award.

Carroll appealed the Supreme Court's ruling, contending that the Supreme Court applied too narrow a standard when it limited its review only to those criteria specifically set out in CPLR §7511. The Appellate Division agreed with Carroll, ruling that the appropriate standard of review was whether there was substantial evidence to support the panel's determination with respect to those charges for which the panel had found him guilty. The court then found that all but one of the Hearing Panel's determinations met the substantial evidence in the record standard.

Carroll raised two additional issues in his appeal. He contended that (1) he was denied administrative due process because the Hearing Panel found him guilty of charges that had not been filed against him; and (2) the Hearing Panel failed to consider the school board's failure to provide "remediation" when it determined the penalty.

According to the Appellate Division, the panel found Carroll guilty of intentionally recording that a student had passed a course although the student had failed the course.

Carroll contended that he was never charged with intentionally falsifying records. The charge filed alleged that Carroll was guilty of misconduct when he marked a student's plan card to indicate that the student had passed a course without having taken the course. The Appellate Division held that the charge adequately apprised Carroll that the alleged misconduct amounted to his intentionally falsifying the student's record and dismissed this branch of Carroll's appeal.

The court, however, agreed that Carroll had been denied administrative due process because the Hearing Panel failed to consider "mitigating circumstances" in determining the penalty. The Appellate Division said that the Hearing Panel failed to honor Carroll's request that the Board of Education's "lack of effort to correct his behavior," be considered by the panel in determining appropriate penalty to be imposed.[3]

The Appellate Division said that there was nothing in the record to indicate that the Hearing Panel considered the Board's efforts. if any, to correct Carroll's unacceptable behavior. Accordingly, the Appellate Division vacated the Hearing Panel's "recommendation" as to the penalty to be imposed and directed that the panel reconsider its recommendation.[4]

Although Section 3020-a(5) clearly states that CPLR Article 75 controls with respect to appeals involving §3020-a decisions, in deciding the Carroll appeal the Appellate Division concluded that §3020-a appeals are to be treated as though they were Civil Service Law §75 disciplinary appeals.

The Court of Appeals declined to review the Appellate Division’s ruling.

Further, if the Appellate Division's view that a §3020-a hearing constitutes compulsory arbitration and thus is subject to the substantial evidence test is correct, its determination raises some additional issues.

§3020-a.1 authorizes a school district and an employee organization to negotiate an alternative to the statutory disciplinary procedure set out in §3020-a. These alternative procedures are usually referred to as "contract disciplinary procedures" and typically are processed as "disciplinary grievances." Practically all contract disciplinary procedures mandate, as the final step, binding arbitration.

Does Carroll mean that Article 75 motions to vacate or modify a disciplinary arbitration award resulting from "compulsory" arbitration in a contract disciplinary procedure negotiated pursuant to the Taylor Law is subject to a court's review based on the "substantial evidence" standard rather than limited to the reasons for vacating an award set out in Article 75?

In any event, in view of Carroll, it would be good practice for a disciplinary hearing panel, statutory or negotiated, to explicitly set out its findings of fact and the reasons for its imposing a particular penalty based in its finding that the individual was guilty of one or more of the charges filed against him or her.

Except with respect to the most egregious acts of misconduct, the Carroll decision clearly signals the need, and reasons, for the employer to attempt to undertake remedial efforts to correct or improve an educator's unsatisfactory behavior and performance prior to its filing formal disciplinary charges against the individual. This type of action is usually referred to as "progressive discipline," i.e., the individual is to be provided with notice of his or her need to improve performance and offered assistance, and a reasonable opportunity, to attain this goal.

---

[1] §3020-a..5 provides: 5. Appeal. Not later than ten days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York State supreme court to vacate or modify the decision of the hearing officer pursuant to §7511of the CPLR. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer. [emphasis supplied]

[2] In contrast to the §3020-a(5) appeal procedure , an individual may appeal an adverse Civil Service Law §75 disciplinary decision to the court pursuant to Article 78 of the CPLR or the individual may elect to appeal the determination to the responsible civil service commission rather than to the courts. In such cases the court applies the substantial evidence in the record test to determine whether or not to sustain the administrative decision.

[3] §3020-a(4) provides that "At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including, but not limited to, remediation, peer intervention or an employee assistance plan."

[4] Although the Court used the term "recommendation" in reference to the disciplinary panel's decision as to the penalty, to be imposed, Section 3020-a provides for the Panel's deciding the appropriate penalty to be imposed rather than its recommending a penalty to be imposed to a school board.

Termination following off duty conduct that violated disciplinary probation settlement agreement.

Termination following off duty conduct that violated disciplinary probation settlement agreement.

Sills v Kerik, Appellate Division, First Department, 5 A.D.3d 247

The Appellate Division sustained a ruling by Supreme Court that rejected a former police officer’s attempt to annul his termination while he was on a disciplinary probation.

Edward Sills, dismissed while serving a one-year dismissal probation period. This probationary period reflected a settlement of disciplinary charges based on allegations of driving while intoxicated and being unfit for duty due to consumption of alcohol. Sills sued the New York City Police Department alleging his termination constituted a violation of the Human Rights Law.

According to the ruling, Sills alleged that he is an alcoholic and thus disabled within the meaning of the Human Rights Law (Executive Law §296 [1] [a]). However, the opinion indicates that Sills did not allege that he was seeking rehabilitation at the time of his termination, nor that his drinking at a party in a parking lot just prior to his termination, and then driving home, provided the Department with a basis to believe that his last attempt at rehabilitation, completed less than four months earlier, was unsuccessful.

In the words of the Appellate Division:

The Human Rights Law does not, as in the case herein, protect an individual who, subsequent to the completion of rehabilitation, suffers a relapse and is found guilty of, and is dismissed for, misconduct.

Supreme Court Justice Heitler approved the termination of Sills’ termination from his position pursuant to a "Terminate Probation Agreement." Sills had signed the agreement in settlement of an earlier disciplinary action. The agreement included the following terms and conditions agreed to by Sills:

The Police Commissioner may impose punishment of dismissal or any lesser penalty he deems appropriate at any time during such period [of probation].

I am fully aware of the fact that I am entitled to a Disciplinary Hearing pursuant to applicable laws of the City and State of New York in which I would be entitled to representation, to confront witnesses against me and to appeal an adverse decision rendered after such hearing to a Court or Administrative Agency of proper jurisdiction.

If this penalty is approved by the Police Commissioner, I accept said decision, and as a condition of accepting such decision of the Police Commissioner, I hereby waive any and all rights granted to me under all applicable laws of the City and State of New York and acknowledge that this acceptance is the same as a finding of guilt after a hearing.

Sills and the Department had entered into the agreement after Sills conceded he was guilty of disciplinary charges alleging that he:

1. Wrongfully operating a motor vehicle while under the influence of alcohol or drugs;

2.Wrongfully and without just cause refusing to submit to a Breathalyzer test; and

3.Was unfit for duty due to having consumed an unknown quantity of an intoxicant

rather than proceed to a disciplinary hearing where the penalty sought by the Department was dismissal from the service.

While on disciplinary probation Sills participated in "off duty" beer drinking with some fellow police officers. Citing the terms of the agreement, the Commissioner terminated Sills from his position without a hearing. Sills sued, seeking a court order annulling his termination and reinstating him to his former position with back salary and benefits.

Sills argued that "he did not commit any misconduct and, as such, there was no reason for his termination." He contended that his drinking beer was done on private property and that off-duty police officers are not prohibited from drinking alcohol as long as they remain fit for duty. Sills also claimed employment discrimination, alleging that the Department "sought to rid itself of an employee with a previously admitted drinking problem and used his probation agreement as a pretext for his termination so that he would not be entitled to a hearing.

The Department, on the other hand, argued that at the time it terminated Sills he was under disciplinary probation that provided for his termination "without a hearing and without a statement of reasons absent a constitutional or statutory violation."

Justice Heitler said that a court must consider whether or not Sills termination was unjustified, unduly harsh, arbitrary, capricious or made in bad faith. Justice Heitler concluded that "[a]s long as the dismissal is not made in bad faith, a probationary employee may be dismissed for any reason or for no reason without a hearing or statement of reasons."

According to the decision, Sills had the burden of showing bad faith by the Department and he was unable to meet this burden.

The court also commented that "even in the case of a non-probationary officer, the Commissioner has the right to terminate for purposes of maintaining the integrity of the police department."

The court dismissed Sills petition, stating that as "a policeman with a history of intoxication, ... [he] ignored his history with alcohol; he further didn't appreciate the fact that, despite this history, he was given a second chance ... his being put on probation."

As to Sills claim of unlawful discrimination because of a disability, Justice Heitler said that because "his admitted conduct demonstrates that he is an alcoholic who continues to drink and is not in a rehabilitation program," he cannot claim protection under §296(1) of the Executive Law as that provision only applies in cases of rehabilitated and rehabilitating drug abusers.

Further, said the court, even if [Sills] did fall within the scope of §296, the reason offered by the Police Department for its terminating him "is the maintenance of the integrity of the Police Force, and legitimate and non-discriminatory in nature."

Justice Heitler said that, under the "totality of the circumstances," he found that Sills failed to meet his burden and dismissed his petition in its entirety. As noted above, the Appellate Division dismissed Sills’ appeal in its entirety.

Crediting expert testimony

Crediting expert testimony

Vassello v McCall, App. Div., 296 A.D.2d 815 

Firefighter Paul N. Vassello, claimed that he sustained injuries when he fell while descending from a fire truck in August 1998. He filed an application for performance of duty disability retirement benefits and, one month later, his employer filed an employer application for ordinary disability retirement benefits on his behalf.

The New York State Employees' Retirement System [ERS] rejected both applications. Vassello appealed but the ERS Hearing Officer upheld the Department's administrative denial of both applications, finding that Vassello was not permanently incapacitated from the performance of his duties as a firefighter. The Comptroller adopted the Hearing Officer's findings and Vassello filed an Article 78 action challenging the Comptroller's decision.

One of the points made by the Appellate Division was that the Hearing Officer considered the competing medical opinions offered by the experts testifying on behalf of Vassello and on behalf of ERS and resolved the conflict in favor of ERS. The court said that the Comptroller, in adopting the Hearing Officer's findings, was free to credit the testimony of one medical expert over that of another, citing Meegan v New York State Retirement System, 285 AD2d 892.

In the words of the court, if "the testimony offered by the Retirement System's expert constitutes substantial evidence to support [the Comptroller’s] determination, it will not be disturbed."

PEF announces contract vote count

PEF announces contract vote count

The New York State Public Employees Federation (PEF) at its press conference on Thursday, November 3, at PEF headquarters in Latham, announced that the results of the ballot count for the union’s revised tentative contract agreement with the State.

The vote count announced by AAA was:

27,718 in favor of the proposed contract;

11,645 opposed to the proposed agreement.

PEF is the state’s second-largest state-employee union, representing 55,000 State employees in the Professional, Scientific and Technical Services negotiating unit (PS&T) and other public and private employees.

All ballots were counted by the American Arbitration Association on Thursday morning, November 3, 2011 at the AAA offices in Manhattan.

As a result there will be no layoffs that would have otherwise taken effect on Friday, November 4, 2011.

PEF members rejected the initial propose agreement presented to them on September 27, 2011. The October 15, 2011 four-year revised proposed contract was accepted by the membership.

The text of the contract is posted on the Internet at:
http://www.pef.org/storage/files/tent_contract.pdf

Administrative Law Judge recommended dismissal of employee testing positive for marijuana

Administrative Law Judge recommended dismissal of employee testing positive for marijuana

NYC Fire Department v Rolling, OATH Index #1645/11

OATH Administrative Law Judge Alessandra F. Zorgniotti recommended termination of employment for an Emergency Medical Technician [EMT] who tested positive for marijuana in a random workplace drug test.

Although the EMT claimed that the positive test resulted from his consumption of vitamins that contain hemp-seed oil, there was no proof that he had consumed any substance that could trigger a false positive result.

Noting that “[i]nnocent ingestion is an affirmative defense that [the accused] must prove by preponderance of the evidence,” Judge Zorgniotti said that the EMT “could not identify anything he consumed that contained hemp-seed oil” at any time during the 24-hour period proceeding his being tested.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1615.pdf

Counseling memorandum and disciplinary action

Counseling memorandum and disciplinary action

Hoffman v Village of Sidney, 652 NYS2d 346 

In a number of instances, counseling memoranda have been challenged on the theory that the employer's issuing a counseling memorandum, in and of itself, constitutes disciplinary action. The courts have rejected the notion that such an effort on the part of the employer to correct employee behavior constitutes discipline. In Hoffman, the Appellate Division ruled that an employee is not entitled to a hearing before a letter critical of his or her performance is placed in his or her personnel file, where no punishment is involved.

As to Taylor Law considerations, PERB has recognized the difference between criticism of employee performance and disciplinary action. In Port Jefferson Union Free School District v United Aides and Assistants,U-5713, PERB rejected a union's claim that every written criticism of an employee was a "reprimand."

The absence of the imposition of any punishment on the employee appears to be the key in determining if a counseling memorandum is, in fact, a subterfuge for disciplinary action. Further, courts typically view term "penalty" to mean one of the statutory penalties authorized by §75 of the Civil Service Law or a similar statute.

The issue of whether the employer’s action constituted constructive criticism or discipline was considered by the Commissioner of Education. in Matter of Fusco, Comm. of Ed. Decision 14,396 and in Matter of Irving, Comm. of Ed. Decision 14,373. In the opinion of the Commissioner of Education, the employers "crossed the line" in both the Fusco and Irving cases.

The Fusco Case:

The Commissioner said that while the general rule is that personnel given critical administrative evaluations by a supervisor are not entitled to Section 3020-a protections, a disciplinary reprimand may not be issued without a finding of misconduct pursuant to Section 3020-a.

In Fusco’s case the Commissioner found that despite the board's representation that the challenged evaluation was "intended to encourage positive change" in Fusco's performance, it "contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on "castigating [Fusco] for prior alleged misconduct."

Instead of "constructive criticism," the Commissioner concluded that the evaluation "chastised [Fusco] for serious misconduct," including "improper release of confidential information, harassment of staff members, damaging district/union relationships...and poor leadership."

The Irving Case

In deciding Irving’s appeal, the Commissioner said that “The record convinces me that disciplinary action was taken and that Irving, a school principal, was deprived of her rights under Education Law Section 3020-a.

Conceding that Sections 1711 and 2508 of the Education Law authorize a superintendent to transfer personnel, the problem here, said the Commissioner, was that Irving's alleged misconduct. i.e., "staff mistreatment" and "parental mistreatment," were the only reasons for reassigning and demoting Irving set out in the record. The Commissioner pointed out that the several meetings between the Superintendent and Irving, and the Superintendent and the board, and the two letters given to Irving by the Superintendent, "are all part of a single process, and it is inescapable that the sole reason for [Irving's] transfer was her alleged misconduct as a principal."

Considering all of these circumstances as a whole, the Commissioner concluded that Irving was entitled to the protections of Section 3020-a, including the right to contest formal charges, "and those rights have been violated here."

Rejecting the district's argument that Irving's "transfer was for the good of the district" and thus not disciplinary in nature, the Commissioner said this theory "misses the mark." He observed, "one would hope that every school district disciplinary action or proceeding, taken in good faith, is for the good of the district."

Another concern: A "counseling memorandum" is placed in an individual's personnel file and later disciplinary charges involving the same event(s) are served upon the individual. Does including the events set out in the counseling memorandum in the charges constitute "double jeopardy?" No, according to the Court of Appeal's rulings in Holt v Board of Education, 52 NY2d 625 and in Patterson v Smith, 53 NY2d 98.

In these cases the court indicated that in the event an employer includes allegations based on the employee's conduct that earlier resulted in the issuing of a counseling memorandum in the charges or specifications filed against the individual in a statutory or contractual disciplinary proceeding, the inclusion of allegations in the charges and specifications involving such prior conduct does not constitute "double jeopardy."

Filing a FOIL request for personnel records

Filing a FOIL request for personnel records

Feerick v Safir, App. Div., 297 AD2d 212 

The basic rule when considering a Freedom of Information Law [FOIL] request is that FOIL provides that all public documents are subject to disclosure. However, the custodian of the records may elect to deny access to documents otherwise subject FOIL if it decides that the document requested may be withheld because it meets one or more of the exceptions set out in the law.

When it comes to FOIL requests concerning personnel records, typically the individual objects to their release. The Feerick case involved a variation concerning FOIL requests for personnel records -- Patricia Feerick submitted a FOIL request to her employer, the New York City Police Department, seeking material contained in her own personnel records. The Department rejected her FOIL request.

Feerick was one of four New York City police officers seeking information concerning an internal police investigation directly related to their involvement in efforts to recover stolen property from suspected drug dealers. The Department's reason for refusing her FOIL request: the information she sought constituted confidential police records and thus fell under one of the exclusion provisions set out in law.

Feerick filed an Article 78 petition seeking disclosure of her personnel records related to the matter. Supreme Court, agreeing with the Department, dismissed her petition. The Appellate Division, however, reversed and ordered the Department to give Feerick the records she had requested under FOIL.

The Appellate Division noted that Public Officers Law §87(2) allows the denial of a FOIL request if the information sought (1) is specifically exempted from disclosure by statute; (2) amounts to an unwarranted invasion of privacy; or (3) interferes with an ongoing law enforcement investigation or judicial proceeding.

At the time that Feerick submitted her FOIL request, said the court, the only tenable basis for the Department to exercise its discretion and not release her personnel records to her was that the information sought amounted to an "unwarranted invasion of privacy." It was conceded that the information demanded constituted confidential personnel records and thus fell under one of the available exclusions to FOIL. However, said the court, the records demanded by Feerick are her own records in contrast to such records being demanded by a third party.

Noting that the privacy exception is for the protection of individuals named in the documents rather that the public entity holding or creating the records, the court decided that any privacy issues raised by the Department were irrelevant as the information demanded directly concerned the individual submitting the FOIL request.

A public entity must be reasonable when deciding whether or not to release information that falls under one of the limited exclusions available to it when denying a FOIL request. In exercising its discretion as to whether to release documents, the custodian must be guided by the public policy underlying FOIL: all governmental records are available to the public and the denial of a FOIL request is the exception to this general rule.

Filing a FOIL request for personnel records

Filing a FOIL request for personnel records

Feerick v Safir, App. Div., 297 AD2d 212 

The basic rule when considering a Freedom of Information Law [FOIL] request is that FOIL provides that all public documents are subject to disclosure. However, the custodian of the records may elect to deny access to documents otherwise subject FOIL if it decides that the document requested may be withheld because it meets one or more of the exceptions set out in the law.

When it comes to FOIL requests concerning personnel records, typically the individual objects to their release. The Feerick case involved a variation concerning FOIL requests for personnel records -- Patricia Feerick submitted a FOIL request to her employer, the New York City Police Department, seeking material contained in her own personnel records. The Department rejected her FOIL request.

Feerick was one of four New York City police officers seeking information concerning an internal police investigation directly related to their involvement in efforts to recover stolen property from suspected drug dealers. The Department's reason for refusing her FOIL request: the information she sought constituted confidential police records and thus fell under one of the exclusion provisions set out in law.

Feerick filed an Article 78 petition seeking disclosure of her personnel records related to the matter. Supreme Court, agreeing with the Department, dismissed her petition. The Appellate Division, however, reversed and ordered the Department to give Feerick the records she had requested under FOIL.

The Appellate Division noted that Public Officers Law §87(2) allows the denial of a FOIL request if the information sought (1) is specifically exempted from disclosure by statute; (2) amounts to an unwarranted invasion of privacy; or (3) interferes with an ongoing law enforcement investigation or judicial proceeding.

At the time that Feerick submitted her FOIL request, said the court, the only tenable basis for the Department to exercise its discretion and not release her personnel records to her was that the information sought amounted to an "unwarranted invasion of privacy." It was conceded that the information demanded constituted confidential personnel records and thus fell under one of the available exclusions to FOIL. However, said the court, the records demanded by Feerick are her own records in contrast to such records being demanded by a third party.

Noting that the privacy exception is for the protection of individuals named in the documents rather that the public entity holding or creating the records, the court decided that any privacy issues raised by the Department were irrelevant as the information demanded directly concerned the individual submitting the FOIL request.

A public entity must be reasonable when deciding whether or not to release information that falls under one of the limited exclusions available to it when denying a FOIL request. In exercising its discretion as to whether to release documents, the custodian must be guided by the public policy underlying FOIL: all governmental records are available to the public and the denial of a FOIL request is the exception to this general rule.

N.B. The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Union is bound by chief negotiator's representation

Union is bound by chief negotiator's representation

Erie County Water Authority and Local 930, 35 PERB 4560 

If the employer relied on the union's chief negotiator's representation that he was authorized to enter into the collective bargaining agreement, the agreement may not later be repudiated by the chief negotiator on the claim that the agreement was contingent on the approval of the union's full bargaining team and the chief negotiator had a duty to advise the employer if he did not have the authority to reach a final agreement or that a final agreement was contingent on the approval of the union's full negotiating committee.

Part-time paid elected official cannot continue receiving unemployment insurance benefits while serving in office

Part-time paid elected official cannot continue receiving unemployment insurance benefits while serving in office

Cass v Commissioner of Labor, 296 A.D.2d 759

Donald M. Cass applied for and was granted unemployment insurance benefits. While he was collecting unemployment insurance benefits, however, Cass was also serving as a member of the Geneva City Council and received a salary of $208.33 per month. Later Cass was sworn in as the Mayor of the City of Geneva, a part-time position for which he was paid $625 per month. He continued to collect unemployment insurance benefits while serving at Mayor.

The Unemployment Insurance Appeal Board [Board] ruled that Cass was ineligible for benefits because he was not totally unemployed during the time he was receiving unemployment benefits and, in addition, it concluded that he had made willful false statements in order to receive these benefits.

According to the Appellate Division's decision, Cass testified that he had mentioned his status as an elected official when he first applied for benefits and was told, by a clerk at the local unemployment insurance office, not to "worry about it". Thus, he contended, he did not reveal that he had received these payments when he made his weekly certifications for benefits.

In contrast to Cass' testimony, the record before the Board included testimony from the clerk who took Cass' application that if claimant had mentioned his status as an elected official, she would have made a note of it on his application for benefits, and she had not done so. In addition, the record included testimony from another Labor Department representative indicating that she had spoken to Cass concerning his benefits and had specifically instructed him that he was required to report any activities performed by him as an elected official during the benefit period.

The Appellate Division sustained the Board's determination. It concluded that there was substantial evidence in the record to support the Board's finding that Cass was ineligible for benefits because he was not totally unemployed at the time and its further finding that he willfully made false statements in order to obtain benefits.

Selection for appointment - the Rule of Three and the Rule of One

Selection for appointment - the Rule of Three and the Rule of One

UFT v. Board of Education, New York City School District, 298 A.D.2d 60

In United Federation of Teachers [UFT] v Board of Education, an action taken to confirm an arbitration award, the critical issue concerned the degree of discretion enjoyed by an employer in determining the "most qualified applicant to fill a vacancy." In effect the court was asked to determine if the “Rule of Three” set out in Civil Service Law §61 trumped a “Rule of One” set out in a collective bargaining agreement.

Linda Feil, a third grade teacher, applied for one of six "per session" positions in Project Read, an after school program. While Feil did not have an Early Childhood or Reading License, she did have 26 years experience as a primary school teacher, possessed a "common branch" teaching license, and had substituted for the Project Read program in the past. Feil was not selected for the job.

UFT grieved the "non-selection" of Feil for the position, contending that the Board's failure to appoint Feil was arbitrary and capricious. The arbitrator, after noting that there was no provision in the collective bargaining agreement [CBA] that addressed the procedure for filling a Project Read position, awarded the position to Feil, together with back pay. In making the award, the arbitrator relied on a provision of the agreement that barred the Board from acting in an arbitrary and capricious fashion.

Although the Board placed Feil in the position, it did not grant her any back pay. In an attempt to obtain the back pay provided for in the arbitration award, UFT initiated a CPLR Article 75 proceeding seeking an order confirming the arbitrator's award. The School Board cross-moved to vacate the arbitrator's award. Supreme Court granted UFT's motion to confirm the award and the Board appealed.

The Appellate Division reversed the lower court's determination, holding that (1) the arbitrator exceeded her authority when she awarded the position to Feil; and (2) the award violated strong public policy.

The court said that despite the fact that the arbitrator acknowledged that there was no contract provision setting out any procedure for selecting an applicant for the Project Read program, she nevertheless awarded one of the positions to Feil.[1]

Accordingly, the Court said it was necessary to analyze the reasoning behind the arbitrator's decision that the CBA had been violated. The court's conclusion: the arbitrator's ruling was based on the fact that she was not convinced that Feil should have been eliminated from consideration because none of four individuals selected for appointment were any more qualified than Feil. This, in the view of the court, constituted "contract making" rather than "contract interpretation."

In addition, the Appellate Division said that the arbitrator's decision, mandating the employment of the individual in this instance, violated strong public policy. Essentially, said the court, notwithstanding the absence of any contract procedure for selecting applicants for a specific job, the arbitrator took it upon herself to decide who was the best qualified applicant -- and decided that it was Feil.

Citing Honeoye Falls-Lima CSD v Honeoye Falls-Lima Education Association, 49 NY2d 732, the Court said "[i]t is well established that `it is beyond the power of a school board to surrender through collective bargaining a responsibility vested in the board in the interest of maintaining adequate standards in the classroom.'" Clearly the Board cannot be divested of its authority concerning the selection of personnel by an arbitrator's award; not even one promulgated under color of a provision contained in a collective bargaining agreement.[2]

The Appellate Division concluded that for the arbitrator to substitute her judgment for that of the appointing authority, "at least in this case."

In contrast, courts have upheld the right of the employer to give up a right to exercise its discretion in selecting an individual for appointment in the course of collective negotiations under certain circumstances.

In Professional, Clerical, Technical Employees Association v Buffalo Board of Education 90 N.Y.2d 364, the Court of Appeals upheld the validity of a collective bargaining agreement that provided for appointment pursuant to "a rule of one" -- the selection of the highest scoring candidate on a civil service examination for appointment to a vacancy. In effect this contract provision obviated the so-called Rule of Three [Civil Service Law Section 61], which gives the appointing authority the discretion to select from among at least three eligibles on the list when filing a vacancy.

§61, in pertinent part, provides that appointment or promotion from an eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment or promotion.

Initially the Civil Service Law mandated the appointment of “those graded highest” – i.e., “the Rule of the List.” The Court of Appeals, however, ruled that such a requirement, in effect, made the Civil Service Commission the appointing authority [People v Mosher, 163 NY 32 (1900)]. As a result, Rule VIII [1] of the 1909 Rules for the Classified Service provided for the “selection of one of the three persons who are willing to accept [appointment] and are graded highest on the most nearly appropriate eligible list...” -- the so-called Rule of Three.[3]

The Professional, Clerical, Technical Employees Association [PCT] had filed a grievance objecting to the Buffalo City School District's "passing over" Melvin Cross, the highest-scoring candidate on a promotion eligible list for appointment to the position of Associate Account Clerk. Buffalo had appointed three lower ranking eligibles to fill three Associate Account Clerk vacancies.

PCT argued that the School District had agreed to be bound by the "rule of one" under a contract negotiated pursuant to the Taylor Law. The School District, however, contended that such a contract provision should not be enforced because enforcing it would violate strong public policy.

Holding the contract provision enforceable, the arbitrator directed the district to appoint Cross to the position of Associate Account Clerk, with back salary and benefits.

Could the arbitrator require the Board of Education to promote the highest-scoring negotiating unit member on a civil service eligible list based on a finding that a rule of one was mandated under the terms of the parties' collective bargaining agreement?

The Court of Appeals ruled that no strong public policy prohibits an appointing authority from agreeing through collective negotiations to give promotional preference to certain employees on an eligible list where a probationary period precedes the employee's attaining tenure.

Observing that "the public policy exception to the arbitrability of public sector labor disputes is narrow," the Court of Appeals affirmed the arbitrator's award, holding that:

The promotional practices of a public employer constitute a term or condition of employment that may be determined through collective bargaining under the Taylor Law. Thus, the court concluded, public policy is not offended by an appointing authority's agreeing to be bound by the so-called "rule of the list."

The lesson here: in contrast to being mandated to follow the rule of the list or a "rule of one," by law, rule or regulation, an appointing authority may elect to forfeit its right to select from among the candidates standing highest on the eligible list.

This concept was acknowledged by the Appellate Division in deciding Feil. It said that its ruling "is not meant to suggest that a collective bargaining agreement may not require that the most senior qualified teacher within the bargaining unit be given preference in filling an open position. Such seniority provisions are, of course, fully enforceable."

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[1] While the arbitrator recognized that the selection of teachers for Project Read was "not covered by the Agreement," she stated that "[t]he exercise of [managerial] discretion [in making such selections] is subject to the general arbitral rule that such an exercise must be undertaken in good faith and not be arbitrary, capricious or discriminatory in nature."

[2] : The Appellate Division, citing Cohoes City School Dist. v Cohoes Teachers Association, 40 NY2d 774, commented that although an arbitrator may render an award based on a school board's failure to adhere to contractually mandated "supplemental procedural steps preliminary to the board's final [action], the school board's ultimate determination on a matter bearing directly on the maintenance of educational standards generally remains immune from arbitral review".

[3] See, also, People v Gaffney, 142 AD 122, affirmed 201 NY 535. In Gaffney the court held that a law or rule limiting the selection for appointment to a single individual on an eligible list unconstitutionally interfered with the right of the appointing authority to select its own officers and employees.

Imposing a disciplinary penalty

Imposing a disciplinary penalty

Toth v Nassau County Police Department, 302 AD2d 600

Was suspending a police officer found guilty of a number of charges of misconduct without pay for 270 days lawful? After all, the Section 75 of the Civil Service Law limits such a suspension without pay for a period not to exceed two months.

The Appellate Division, Second Department, said it was appropriate under the circumstances and the controlling law. It sustained the 270-day suspension without pay disciplinary penalty imposed by the appointing authority on Nassau County police officer Peter S. Toth after he was found guilty of:

1. Two counts of engaging in conduct unbecoming an officer,

2. One count of using departmental equipment other than in the course of official business,

3. Four counts of engaging in unlawful conduct,

4. Two counts of failing to treat as confidential the official business of the Nassau County Police Department, and

5. One count of making or submitting, or causing to be submitted, a false official communication, record, or statement.

The Appellate Division said that Toth's guilt with respect to these charges was supported by substantial evidence in the record. As to the nature of the penalty imposed, the court said that the Police Department's determination regarding appropriate internal discipline to be imposed is entitled to great deference and, "under the circumstances of this case, will not be disturbed."

Although §75 of the Civil Service Law limits the suspension without pay for a period of not to exceed two months, the Appellate Division, citing Coscette v Town of Wallkill, 281 AD2 479, ruled that the penalty of suspension without pay for 270 days was permissible pursuant to Civil Service Law §76(4) and Nassau County Administrative Code §8-13.0.

Section 76(4), in pertinent part, provides as follows:

Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division [emphasis supplied.]

In contrast to the “suspension without pay for a period not exceeding two months” cap set out in Section 75 of the Civil Service Law, §8-13.0(a)(3) of Nassau’s Administrative Code does not place any limitation on the length of any suspension, with or without pay, that may be imposed as a disciplinary penalty by he Commissioner of Police.*

* Nassau County Administrative Code §8-13.0 Discipline and punishment, in relevant part, provides as follows:

a. The Commissioner shall have power to discipline a member of the force by:

1. Reprimand;

2. Fine;

3. Suspension, with or without pay;

4. Dismissal or removal from the force; or

5. Reducing him to any grade below that in which he was serving. If he be above the grade of patrolman, after which his compensation shall be the same as that allowed to remembers [sic] of the grade to which he is reduced.

Videotape used at disciplinary hearing to demonstrate alleged misconduct

Videotape used at disciplinary hearing to demonstrate alleged misconduct

NYC Department of Corrections v Negron, OATH Index #1844/11

A New York City correction officer was charged with using unnecessary and excessive force against inmates on three different occasions. 

After reviewing videotape of the incidents and hearing testimony from a number of correction officers, two supervisors and the employee, OATH Administrative Law Judge Kara J. Miller ruled that the correction officer had used unnecessary and excessive force three times and submitted false or misleading reports concerning the incidents.  

Judge Miller, who had dismissed one of the charges filed against the correction officer – failure to report an  incident -- recommended that the employee be terminated.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1844.pdf

Promotion to entrance level positions

Promotion to entrance level positions

Gallagher v City of New York, 307 A.D.2d 76 

May the state or a municipal civil service commission authorize a promotion examination for an entrance level position? This was the significant issue explored by Justice Solomon in the Gallagher case.

Kevin E. Gallagher, as president of the Uniformed Firefighters Association, sued the City of New York's Department of Citywide Administrative Services [DCAS] in an effort to bar the use of a "special promotional list" in place of, or ahead of, a list established by open competitive examination for appointment to New York City firefighter positions.

According to the decision, DCAS held two identical written examinations for firefighter on February 27, 1999. One examination, No. 7514, was open only to employees of the New York City Fire Department [FDNY] and was treated as a "promotion examination." The other, No. 7029, was open to members of the general public who met age and other eligibility requirements. Essentially, only the individuals transferred into FDNY from the Emergency Medical Service of the City's Health and Hospital Corporation were eligible for examination 7514.

DCAS established an eligible list composed exclusively of candidates who passed examination 7513 and a number of appointments were made from that list. No candidate who only took examination 7029 was appointed as a fire fighter.

Gallagher asked the court to require the DCAS to "merge" the two lists and make all future appointments from this merged list on the theory that since the position of firefighter was an entrance level position, providing for a "promotion examination" for that title violated the Civil Service Law.

Justice Solomon noted that the Court of Appeals in Murray v McNamara, 303 NY 140, said that:

while it was mindful of the legislative policy embodied in then Civil Service Law Section 16 (now Section 52), favoring the filling of vacancies through promotions, under Article 5, section 6 of the Constitution, "the right to appointment is entitled to the same protection as the right to promotion ...."

Essentially the Court of Appeals ruled that "promotion examinations may be held only where the employees sought to be promoted have passed an open examination for a lower grade in the type of work involved in the position to which promotion is sought." 

In Beloten v Diamond, 276 AD2d 438, the Appellate Division, First Department, with specific reference to employees of the FDNY in titles that were carried over from EMS, held that "the position of firefighter is an 'entry level' position," and, prior to the transfer of EMS to the FDNY, there could be no "promotion" to that position.

After weighting these several decisions and the arguments made by the parties, Justice Solomon decided that "FDNY shall make appointments of candidates for the position of firefighter from a merged list encompassing both the promotional and open lists." In the words of Justice Solomon:

Fairness dictates this result because the examinations were identical, and the determination by DCAS to exhaust the promotional list before appointing candidates from the open list was arbitrary and capricious....

The Court than prohibited FDNY from making any future firefighter appointments from other than the merged list.

Availability of a record essential in reviewing administrative determinations

Availability of a record essential in reviewing administrative determinations

Gumb v Port Authority of New York and New Jersey, NYS Supreme Court, Ia Part 6, Justice Bransten [Not selected for publication in the Official Reports.]

Citing Pell v Board of Education, 34 NY 2d 222, Justice Bransten said that it is well-settled that the standard for judicial review of an administrative determination in an appeal brought pursuant to CPLR Article 78 is limited to a court's determining whether or not the agency acted arbitrarily or capriciously in making its decision.

Assume, however, the agency whose decision is under review, through no fault of its own, cannot produce the records it claims would demonstrate that its decision was neither arbitrary nor capricious. This was the situation underlying the Gumb case.

Kevin J. Gumb filed an application for appointment as a police officer with the New York-New Jersey Port Authority Police. After he took and passed the Authority's written test for the position, the Authority notified him that it had disqualified him for appointment as a police officer based on the evaluation of his psychological tests and interviews "which found ... personality traits incompatible with the unique demands and stresses of employment as a Port Authority Police Officer."

Gumb sued, claiming that the Port Authority's determination was arbitrary and capricious and amounted to an abuse of discretion.

The only available record concerning Gumb's testing: a letter sent to Gumb stating that:

Based upon the multiple written psychological screening tests administered and two individual interviews, it was determined by the Port Authority Office of Medical Services that [you] would be unsuited [sic] for the position of Police Officer for Port Authority Public Safety Division.

The medical records concerning Gumb's examination and evaluation were destroyed in the September 11 terrorist attacks on the World Trade Center. Under the circumstances, the Authority argued, the letters sent to Gumb should be sufficient evidence of the basis for its administrative determination disqualifying Gumb to justify the court's dismissal of his petition. In the words of the Authority, the loss of the actual record "is insignificant to the instant petition, because the record is clear that [Gumb] was interviewed twice and was found unsuitabl[e] for the position."

The court disagreed, noting that courts are obligated to undertake a limited review to ensure "administrative rationality" and must find that there is some "rational basis or credible evidence to support an administrative determination" in order to sustain the administrative action being challenged.

Although there was written correspondence to Gumb notifying him that he was not going to be certified based upon results of psychological examination, the court said that it had nothing to rely upon to determine the rationale behind the Authority's decision to disqualify him. Accordingly, Justice Bransten said that it would not "blindly defer to the governmental decision" and ordered the Authority to re-evaluate Gumb.

Significantly, the court did not conclude that the Port Authority was arbitrary and capricious in making its determination. Rather, Justice Bransten said that the court's difficulty concerned the fact that, through no fault on the part of the Authority, there simply was no administrative record to review.