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Wednesday, August 05, 2015

Settlement agreements

Settlement agreements
George W. & Dacie Clements Agric. Research Institute, Inc. v Green, 2015 NY Slip Op 06399, Appellate Division, Third Department

In its review of a Supreme Court ruling in a real property action in which one of the parties sought summary judgment to enforce a “settlement agreement,” the Appellate Division set out a number of guidelines that could lead to effecting a binding settlement agreement. 

These guidelines may prove helpful in the context of a “settlement agreement” resolving an employee disciplinary action.

1. An out-of-court settlement agreement "is not binding upon a party unless it is in a writing subscribed by [that party] or [that party's] attorney;"

2. Writings between parties to an action or proceeding that discuss the possibility of settlement will be considered to constitute a binding agreement if "the settlement agreement was adequately described in [such] writings, namely, the agreement was clear, the product of mutual accord and contained all material terms;" and

3. Settlement-related writings may be deemed to have contained sufficiently detailed terms to give rise to a binding agreement when, for example, these writings explicitly incorporate the terms of other documents prepared in anticipation of settlement.

In contrast, said the court, settlement-related writings will not be found to have created a binding agreement if they expressly anticipate a subsequent writing that is to officially memorialize the existence of a settlement agreement and set forth all of its material terms or where the terms of the settlement agreed upon by the employee organization on behalf of an employee and the appointing authority’s representative is subject to the approval of the appointing authority.

In Alfred v Safir, 283 AD2d 280, the disciplinary penalty to be imposed agreed upon by the employee and employer’s representative was made part of the record by the disciplinary hearing officer.

New York City Police Commissioner Howard Safir suspended Gary Alfred for 30 days without pay and placed him on disciplinary probation for one year following the "settlement of disciplinary charges" filed against Alfred. Alfred objected, contending that he, the department’s representative at the disciplinary hearing and the disciplinary hearing officer had all agreed to the imposition of a different disciplinary penalty.

The Appellate Division unanimously affirmed Safir’s decision, commenting that “[t]he various determinations and penalties agreed to by [Alfred] and [the department’s] advocate and/or hearing officer were not binding” on Safir, the appointing authority, citing Silverman v McGuire, 51 NY2d 228.

This decision suggests that where the appointing authority makes the final disciplinary determination, it would be prudent for:

1. The employer’s representative to insist that any settlement of a disciplinary action include a statement to the effect that the settlement is subject to the approval of the appointing authority; and

2. The employee or the employee’s representative to insist on a provision spelling out what is to happen if the appointing officer does not agree to impose the penalty set out in the settlement proposal.

Another issue that may arise as the result of efforts by the employer and the employee organization to settle a disciplinary action: the employee organization later refuses to sign the disciplinary settlement agreement. Would the union's refusal to sign the agreement constitute a failure to bargain in good faith? PERB considered this question in Town of Henrietta and CWA, 23 PERB 3004. 

The employer filed a complaint with PERB alleging the union violated its duty to negotiate in good faith when it refused to sign the disciplinary settlement agreement that the employer contended was required by §204.3 of the Civil Service Law [the Taylor Law].

PERB found an oral agreement had been reached. However, the only issue for it to decide, said PERB, was “whether a Taylor Law duty exists to execute the disciplinary settlement agreement reached.”

PERB ruled that “the duty to execute a written agreement created by §204.3 is most appropriately construed as applying to collectively negotiated agreements and not to settlement agreements reached pursuant to the grievance procedure contained in such a collective bargaining agreement.”

As to the contents of a settlement agreement, the agreement might set out provisions that could affect the employer's ability to file disciplinary charges against the employee in the future. 

For example, in Matter of the Board of Education of the Unadilla Valley Central School District, 97 AD3d 1078, the Appellate Division held that a disciplinary settlement agreement that provided that the appointing authority waived its right to bring certain charges against an individual barred it from subsequently bring charges based on the same event[s] or omission[s] while in Shuler v State of New York, 48 AD3d 384, the court sustained a provision in a disciplinary settlement agreement that preserved certain allegations of employee misconduct for subsequent action.

The Research Institute decision is posted on the Internet at:

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at

A Reasonable Penalty Under The Circumstances at

The Disability Benefits E-book: at

Layoff, Preferred Lists at


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