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March 03, 2011

Settling a disciplinary action by agreeing to disciplinary probation

Settling a disciplinary action by agreeing to disciplinary probation
Matter of Campbell v State of New York, 37 AD3d 993

The New York State Office of Mental Health [OMH] filed disciplinary charges against Monica A. Campbell. Instead of proceeding with a disciplinary hearing, Campbell and her union, New York State Correctional Officers and Police Benevolent Association [PBA] “settled” the matter by agreeing to have Campbell serve a “one-year disciplinary probationary period.”

The settlement agreement provided that:

Should Ms. Campbell commit any actions or omissions during this one-year period “which rise to the level of misconduct and/or incompetence” she will be terminated from [s]tate service without recourse to Article 8 [of the collective bargaining agreement].

The disciplinary grievance procedure set out in Article 8 provided for arbitration as the final step in a disciplinary action.

Ultimately OMH determined that Campbell was guilty misconduct while in “disciplinary probationary status” and terminated her employment. PBA appealed her termination and demanded arbitration. OMH refused to submit its decision to terminate Campbell to arbitration, contending that arbitration was not available under the terms of the disciplinary settlement agreement. PBA filed a petition pursuant to CPLR Section 7503 seeking a court order compelling arbitration.

Supreme Court found that the disciplinary settlement agreement did not exclude arbitration of the question of whether Campbell was guilty of misconduct and ordered arbitration. OMH appealed.

As the Appellate Division’s decision notes, it is well settled that a right to arbitration, like contract rights generally, may be waived or abandoned. The issue here, said the court, was whether the disciplinary settlement agreement entered into by the parties constituted a waiver of PBA’s right to submit Campbell’s dismissal to arbitration.

According to the record, the settlement agreement initially made Campbell a probationary employee for one year. This language, however, was amended at the request of PBA’s attorney and the phrase “disciplinary evaluation period” [DEP] was substituted in its place in order to “avoid impairment of Campbell's seniority and layoff rights.”

Noting that paragraph 9 of the PBA’s petition seeking to compel arbitration itself confirm that the parties understood that the DEP would be a probationary period, the Appellate Division said that “This clear meaning and understanding of the parties is in complete harmony with the meaning and use of DEPs in similar reported cases,” citing Matter of Miller v Coughlin, 59 NY2d 490, 493; and Matter of McGough v State of New York, 243 AD2d 983, 983-984 [1997], lv denied 91 NY2d 807, among others.

The court said the disciplinary settlement agreement specified the party that would determine whether there was subsequent misconduct by Campbell, – i.e., OMH. Accordingly, said the Appellate Division, Campbell’s sole remedy was to challenge OMH’s determination that resulted in her termination pursuant to CPLR Article 78.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/disciplinary-probation.html

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, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.
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