TO SEARCH this database type in a key word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.
State of New York vs. COVID-19 - Governor Andrew M. Cuomo periodically updates New Yorkers on the state's progress during the ongoing COVID-19 pandemic. The latest reports of the number of new cases, the percentage of tests that were positive and many other relevant data points concerning COVID-19 are available at forward.ny.gov.
N.B. §22 of the New York State's 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 applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.
January 21, 2011
Failure to meet contract deadlines does not void disciplinary action
Covino v Kane, 273 AD2d 380, Motion for leave to appeal denied, 96 NY2d 701
The significant issue raised in the Covino case concerns the impact of the employer’s failing to meet a contract-specified deadline in issuing a disciplinary determination.
A member of the Nassau County Police Department, Craig S. Covino, was found guilty of violating seven departmental rules and regulations and a disciplinary penalty was imposed.
Covino objected, complaining that the Police Commissioner, issued his decision late in violation of Section 6.3-1 of the collective bargaining agreement between the Police Department and the Covino’s union. This failure to make a timely determination as to Covino’s guilt and the penalty to be imposed as punishment, Covino argued, required that the disciplinary action be rescinded. Section 6.3-1 of the collective bargaining agreement provided that:
A determination as to guilt or innocence and punishment, if any, shall be made within sixty (60) days after the hearing is concluded unless an employee or the [Superior Officers Association] consents to a longer period.
According to the decision, Covino was served with charges and specifications and his disciplinary hearing was concluded in September 1998.
The hearing officer’s report, dated November 20, 1998, recommended that Covino be found guilty of all of the charges preferred against him. On January 4, 1999 the Commissioner concurred with the findings of the hearing officer as to Covino’s being guilty of the charges filed against him and imposed penalties based upon those findings and recommendations.
Should the Commissioner’s determination be overturned because he failed to meet the 60-day deadline for issuing a decision as required by the agreement?
No! said the Supreme Court, Nassau County, the Commissioner’s decision should not be vacated or rescinded and dismissed Covino’s petition. The court ruled that in the absence of specific language barring further action, an employer’s failure to act within the time frame contemplated in a collective bargaining agreement does not preclude further action by the employer.
The Appellate Division, Second Department, agreed.
In affirming the lower court’s ruling, the Appellate Division pointed out that in interpreting similar contractual provisions, the Second Department has repeatedly held that, in the absence of prejudice, the failure to timely render a determination pursuant to the terms of the parties’ contract does not warrant vacatur of the determination, citing Correctional Unit Employees v State of New York Department of Correctional Services, 236 AD2d 546.
The decision by the Appellate Division suggests that the Supreme Court decided, or assumed, that the 60-day period for the Commissioner to issue a timely decision in accordance with relevant contract provision started when the hearing was concluded in September 1999. If, on the other hand, the disciplinary hearing is not deemed concluded until the hearing officer issued his or her determination and recommendations, this 60-day period would begin to run not before the date the hearing officer issued his or her report -- November 20, 1998.
Another case contract time limits: City of Newburgh v DeGidio, 273 A.D.2d 468. In this Article 75 action to stay arbitration, the Appellate Division to the parties to proceed to arbitration to resolve the issue. Reversing the Supreme Court’s ruling to the contrary, the Appellate Division, citing County of Rockland v Primiano Construction Co., 51 NY2d 1, held:
Where the collective bargaining agreement does not contain an express provision making compliance with the time limitations set forth in the grievance procedure a condition precedent to binding arbitration, the issues related to compliance with the time limitations set forth in the grievance procedure are matters of procedural arbitrability for the arbitrator to decide.
In other words, the arbitrator is to decide whether if the demand for arbitration was valid under the terms of the agreement.
The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. a 1020 page e-book is available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic handbook.
Public Personnel Law E-books
The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on https://booklocker.com/books/5215.html
A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on http://booklocker.com/books/7401.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