Monday, May 15, 2017

Some exceptions to the Doctrine of Exhaustion of Administrative Remedies


Some exceptions to the Doctrine of Exhaustion of Administrative Remedies
Police Benevolent Assn. of N.Y. State, Inc. v State of New York, 2017 NY Slip Op 03588, Appellate Division, Third Department

Civil Service Law §64 bars temporary appointments to positions in the competitive class excess of three months, subject to certain exceptions, including, but not limited to, when an employee is on leave of absence from the position.

The Police Benevolent Association of New York State, Inc. [PBA], the bargaining representative for individuals employed as university police officers [UPO] at the State University of New York [SUNY] brought an Article 78 action seeking an order, among other things, annulling the temporary part-time appointment of an individual [Employee] as a UPO by SUNY's College of Environmental Science and Forestry. PBA contended that SUNY's appointment of Employee as a temporary part-time employee violated Civil Service Law §64.

Supreme Court granted SUNY's pre-trial motion to dismiss PBA's petition on the ground that PBA did not exhaust its administrative remedies. SUNY cited  an appeal of a grievance filed by PBA pursuant to the relevant collective bargaining agreement [CBA] then pending before the Governor's Office of Employee Relations [GOER] in support of its "failure to exhaust administrative remedies" in support of its motion to dismiss PBA's Article 78 petition.

PBA appealed and the Appellate Division reversed the Supreme Court's decision, finding that the exhaustion of remedies principle was inapplicable here because the matter was "ripe for judicial review."

Although the court observed that  "[A] determination made by an administrative agency must first be challenged through every available administrative remedy before it can be raised in a court of law," it said that this rule does not apply where [1] "an administrative challenge would be futile" or [2] where "the issue to be determined is purely a question of law."

The Appellate Division noted that PBA's Article 78 petition did not challenge the grievance determinations by SUNY processed pursuant to the grievance procedure set out in the CBA and that an appeal concerning those decisions were then pending a determination by the Governor's Office of Employee Relations.*

Rather PBA's Article 78 action challenged the appointment of Employee on the ground that it violated Civil Service Law §64. As PBA does not allege that SUNY violated the CBA, but instead alleges a statutory violation, it was not required to use the CBA's grievance procedure.

Indeed, said the court, "Article 7 of the CBA limits the grievance process to three types of disputes: first, concerning the application and/or interpretation of the CBA; second, concerning a term or condition of employment; and third, concerning a claim of improper or unjust discipline. However, none of these provisions "can be reasonably viewed as applicable to an (alleged) unlawful appointment by SUNY" in violation of §64 of the Civil Service Law.

As the cited provisions in the CBA are inapplicable with respect to adjudicating the alleges violation of Civil Service Law §64, use of the grievance process to challenge the appointment on statutory grounds would have been futile. As Employee's appointment was final, resulting in an alleged injury to PBA and, or, collective bargaining unit members, and because the question presented is "purely legal," the Appellate Division ruled that the matter "is ripe for judicial review" and Supreme Court erred in granting SUNY' pre-answer motion to dismiss.

* The Appellate Division noted that GOER denied the grievance and PBA made no demand for arbitration.

The 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 http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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