TO SEARCH THIS DATABASE type in a word or phrase in the box in the upper left corner and any material containing the word or phrase will be displayed for your review.

N.B. §22 of the New York State General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL follows this protocol.

February 23, 2010

Arbitrator finds employee guilty of disciplinary charges filed against him; offers employer a choice of penalties to be imposed

Arbitrator finds employee guilty of disciplinary charges filed against him; offers employer a choice of penalties to be imposed
Matter of Hansen v New York State Dept. of Correctional Servs., 59 AD3d 903

NYS Correction Officer Ronald Hansen was served with two notices of discipline. One charged him with “failing to obey a direct order;” the second him with “failing to report to duty.”

Hansen filed a disciplinary grievance and the arbitrator ruled that he was guilty of misconduct for failing to report to duty. As to a penalty, the arbitrator said that the appointing authority could either [1] terminate Hansen or [2] continue him in service and give a written reprimand and fine him two months of pay.

Hansen appealed the arbitrator’s finding as to guilt and, in addition, challenged the award’s providing for “a choice between two specific sanctions” that Corrections could impose.

Supreme Court confirmed that portion of the arbitration award that found Hansen guilty of failing to report for duty but agreed with him that “the penalty was indefinite and failed to resolve an issue in controversy by providing DOCS with the option as to the penalty to be imposed for the violation.”

Noting that Hansen neither claimed that either penalty was inappropriate nor an abuse of the arbitrator's authority, the Appellate Division reversed Supreme Court’s holding that the “penalty was indefinite.”

Rather, said the court, each penalty as proposed was final and definite and provided the parties with the arbitrator's determination as to what would constitute an appropriate penalty for the misconduct involved. Offering a choice of two definite penalties does not render the final award indefinite.

Citing Matter of Meisels v Uhr, 79 NY2d 526, among other decisions, the Appellate Division said that an award that permits the prevailing party to select from between alternatives lacks finality and definiteness and is subject to vacatur "if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or, if it creates a new controversy."

Rather than set parameters from within which Corrections could choose an appropriate penalty, the award offered Corrections the choice between two definite penalties, either of which would be an appropriate response to the misconduct involved.

NEW YORK PUBLIC PERSONNEL LAW ELECTRONIC HANDBOOKS


Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.


Click here to Read a FREE excerpt from A Reasonable Disciplinary Penalty Under the Circumstances applied to public employees in New York State.


Click here to Read a FREE excerpt from The Layoff, Preferred List and Reinstatement Manual.


Click here to Read a FREE excerpt from Disability Benefits for fire, police and other public sector personnel.

Caution:

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. AGAIN, REMEMBER THAT 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.


N.B. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.