TO RESEARCH NYPPL POSTINGS type in your key word or phrase in the box at the upper left and tap enter.
Thursday, January 21, 2010
No right to discovery in a disciplinary procedure unless provided by law or specifically provided by the collective bargaining agreement
Matter of Pfau v Public Employment Relations Board, 2010 NY Slip Op 00340, Appellate Division, Third Department
The Public Employment Relations Board (PERB) determined that the Unified Court System (UCS) engaged in an improper practice under the Taylor Law (Civil Service Law Article 14) when it refused the prehearing disclosure demands made by an USC employee, Ann Pfau after she was served disciplinary charges.
Supreme Court ultimately vacated and annulled PERB's order. PERB [together with District Council 37, Local 1070 as an “intervener”] appealed.
The Appellate Division sustained the lower court’s ruling, noting that “When PERB acts within areas of its expertise, judicial review of its action is limited” but PERB cannot create rights not contemplated by statute or otherwise act in an arbitrary or irrational fashion.
The court explained:
1. In contrast to disciplinary actions, there is “firm footing” for recognizing the right of an employee organization to obtain information relevant to a potential contractual grievance concerning the interpretation, application or alleged violation of a provision of a collective bargaining agreement.
2. Disciplinary proceedings involve alleged misconduct by an employee and serve a significantly different function than a contract grievance. Although the specifications of alleged misconduct set out in the disciplinary charges must be sufficiently detailed to permit the charged employee to prepare and present a defense “there is no general right to disclosure in a disciplinary proceeding.”*
The Appellate Division noted that although PERB conceded that were the disciplinary proceeding held pursuant to Civil Service Law §75, there would have been no right to prehearing disclosure, it nevertheless determined that the disciplinary procedures set forth in the collective bargaining agreement should be considered as negotiated rather than arising from statutory or regulatory provisions. PERB, said the court, then extended the right to disclosure in contract grievance proceedings to include a right to disclosure in disciplinary proceedings.
The court noted that PERB also decided that “the right to prehearing disclosure would … be relinquished if the employee opted for private representation rather than [representation by] a Union attorney.”
The Appellate Division said considering “the starkly disparate roles of contractual grievances and employer disciplinary proceedings,” PERB’s decision to extend the established right to information in processing contract grievances to employee disciplinary proceedings was arbitrary.
Further, said the court, PERB’s making such disclosure in a disciplinary action contingent upon the employee using "Union counsel rather than private counsel," without evidence that such a result was ever desired or even discussed by any party, “lacks rationality.”
* However an employee's right to disclosure, frequently characterized as a "bill of particulars," may be provided by statute [see Education Law §3020-a 3.c.(iii)].
Handbooks focusing on New York State and Municipal Public Personnel Law:
The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html
The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html
The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.htmlA Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
Copyright© 1987 - 2016 by the Public Employment Law Press.