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Wednesday, July 26, 2017

The collective bargaining representative's duty of fair representation


The collective bargaining representative's duty of fair representation

One of the issues in Winston Henvill's Article 75 petition seeking to vacate the arbitration award that terminated his employment with the Metropolitan Transportation Authority [MTA] was his allegation that his collective bargaining representative, the Metropolitan Transportation Authority Police Benevolent Association [PBA], breached its duty of fair representation. 




Tuesday, July 25, 2017

Determining if a demand for arbitration of alleged violations of provisions set out in a collective bargaining agreement is viable


Determining if a demand for arbitration of alleged violations of provisions set out in a collective bargaining agreement is viable

The City of Watertown [City] filed a petition pursuant to CPLR Article 75 seeking a court order permanently staying the arbitration of a grievance filed by the Watertown Professional Firefighters' Association Local 191 [Local 191] concerning:

1. Failure to maintain minimum staffing levels.

2. Agreement to arbitrate.

3. Staffing levels.

4. Grievance procedural matters.

5. Out of title work.

 



Friday, July 21, 2017

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence


Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

In this decision the Appellate Division sets out the basic rules followed by the courts when reviewing an administrative determination arrived at following a quasi-judicial hearing by an appointing authority or its designee. In this instance the appointing authority adopted the report and recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75 finding the charged party [Petitioner] guilty of certain disciplinary charges, and terminated the Petitioner's employment.



Thursday, July 20, 2017

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement


Considering breaks in service in determining seniority for the purposes of layoff and reinstatement

Appeal from a judgment of the Supreme Court Ulster County granting petitioner's [Petitioner] application in a proceeding pursuant to CPLR Article 78 seeking to annul a determination of the Board of Education denying Petitioner's request for certain seniority rights.

Wednesday, July 19, 2017

Petitioning the Commissioner of Education to remove a member of a school board from his or her office


Petitioning the Commissioner of Education to remove a member of a school board from his or her office 

A number of district residents, taxpayers and current or former members of the Board of Education [Petitioners] sought to have a sitting member of the Board of Education [Respondent] removed from his office by action of the Commissioner of Education pursuant to §306 Education Law. Petitioners alleged that the Respondent was guilty of "willful violation of the Education Law, General Municipal Law §805-a(1)(b) and Public Officers Law §105, and engaging in acts of willful misconduct in violation of the [school] district's code of ethics and policies concerning the confidential nature of the board's executive sessions."



Tuesday, July 18, 2017

An employer may be vicariously liable for an allegedly slanderous statement made by its employee


An employer may be vicariously liable for an allegedly slanderous statement made by its employee


The Plaintiff in this action against a village and an employee of the village [Defendants] alleged that an employee of the village made defamatory remarks concerning the Plaintiff in the course of her employment as an administrative assistant of the village.



Monday, July 17, 2017

Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law


Exploring claimed procedural obstacles to demands for certain records pursuant to New York's Freedom of Information Law
Filing a petition pursuant to CPLR Article 78 seeking a court order directing the Williamsville Central School District's Board of Education [Board] to comply with her Freedom of Information Law [FOIL] request seeking certain email records. In its review of a Supreme Court's ruling directing the Board to provide the records demanded by Kirsch the Appellate Division addressed the following objections raised by the Board:

1. Standing to submit a FOIL request.

2. Statute of Limitations.

3. Adding another party to the action.

4. Exemptions from disclosure.


5. Identification of the records demanded.



Friday, July 14, 2017

Attempting to vacate an adverse arbitration award rendered after a consensual arbitration process


Attempting to vacate an adverse arbitration award rendered after a consensual arbitration process

The New York City Transit Authority [CTA] terminated the employment of a member of the Transit Workers Union, Local 100 [Local 100], a bus CTA driver, who had been involved in an incident with a pedestrian. Local 100 filed an Article 75 action seeking a court order vacating an arbitration award that held that CTA had just cause to terminate Local 100's member's employment because of the incident. 



Thursday, July 13, 2017

Suspension of a tenured teacher requires the timely filing of written charges and specifications with the clerk or secretary of the board of education


Suspension of a tenured teacher requires the timely filing of written charges and specifications with the clerk or secretary of the board of education

After disposing of a number of procedural issues, the Commissioner of Education addressed Petitioner's allegations that she was unlawfully placed on administrative leave with pay without any disciplinary charges having been preferred against her pursuant to Education Law §3020-a in violation of her rights to administrative due process. 



Wednesday, July 12, 2017

Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer


Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer

The penalty of termination of employment was imposed by a disciplinary hearing officer upon the petitioner in the Article 78 action [Petitioner], a special education home instruction teacher. The hearing officer found that Petitioner had submitted time sheets falsely stating that she had provided instruction to a disabled student and inaccurately indicated that she had reported to certain New York City Department of Education [DOE] schools and libraries over the two-month period in the aftermath of the impact of Hurricane Sandy on New York City and its surrounding area.



Tuesday, July 11, 2017

Guidelines applicable when police officer being sued in a civil action seeks to have his or her employer provide for his or her defense and indemnification in the civil action


Guidelines applicable when police officer being sued in a civil action seeks to have his or her employer provide for his or her defense and indemnification in the civil action

A federal civil rights action was commenced in the United States District Court for the Eastern District of New York against, among others, a Nassau County police officer [Petitioner]. The claims in the federal action against Petitioner arose from an off-duty altercation caused by a traffic dispute, during which the Petitioner allegedly fired a gun at the plaintiff in the federal action. Petitioner sought to have his employer, Nassau County, defend and indemnify him in the federal action.

Monday, July 10, 2017

A contingent permanent appointment made pursuant to §64.4 of the Civil Service Law must be specifically so identified by the appointing authority


A contingent permanent appointment made pursuant to §64.4 of the Civil Service Law must be specifically so identified by the appointing authority

The employee [Petitioner] in this CPLR Article 78 proceeding sought a court order vacating the appointing authority's decision to reinstate her to her lower grade position, contending that she had been appointed to the higher grade position as a permanent or contingent permanent employee and thus was entitled to the procedural protections of Civil Service Law §75 as a condition precedent to her being returned to her lower grade position.

Friday, July 07, 2017

Unlawful discrimination complaint sustained notwithstanding respondent's failing to appear at the administrative hearing conducted by the NYS Division of Human Rights


Unlawful discrimination complaint sustained notwithstanding respondent's failing to appear at the administrative hearing conducted by the NYS Division of Human Rights

The Appellate Division unanimously sustained the New York State Division of Human Rights' (DHR) determination holding that  Milan Maintenance, Inc., [Milan] had unlawfully discriminated against an individual that it rejected for employment and DHR's awarding the complainant $10,000 for mental anguish and humiliation.

Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing



Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing

An employee [Employee] at a residential facility operated by the Office of People with Developmental Disabilities [OPWDD] was alleged to have physically abused a resident. An investigator conducted interviews of several witnesses and found the report of physical abuse to be substantiated. After a hearing, Employee's request that report be amended to unsubstantiated and that the report be sealed was rejected and a final determination sustaining the report of physical abuse was made.

Thursday, July 06, 2017

Disqualifying an employee for employment in the public service and revoking his or her appointment based on a finding of fraud of a substantial nature in his or her application for employment


Disqualifying an employee for employment in the public service and revoking his or her appointment based on a finding of fraud of a substantial nature in his or her application for employment  

In 2009 the petitioner [Petitioner] in this Article 78 action had completed an application for employment with a public employer [Employer A] that included the question, "Have you ever resigned from employment rather than face discharge?" Petitioner answered "no" and signed an affirmation that the statements in the application "[were] true under the penalties of perjury and that a material misstatement or fraud may disqualify [her] from appointment." Petitioner was subsequently appointed by Employer A. In 2015, Employer A issued a notice of charges alleging several acts of misconduct and notifying Petitioner that it would seek her dismissal if she was found guilty after a hearing. After obtaining additional information, the notice of discipline was revised to add a charge that Petitioner had made a false statement in her application for employment.


Wednesday, July 05, 2017

The actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period


The actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period

An individual [Probationer]  serving with the  New York State Department of Corrections and Community Supervision was promoted to a higher grade position subject to his satisfactory completion of a 52-week probationary period. Shortly after Probationer had completed the minimum period of probation he was terminated from his probationary appointment and reinstated to his former, lower grade, position.

Monday, July 03, 2017

Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits



Unemployment Insurance Appeals Board may apply the doctrine of collateral estoppel to a disciplinary determination made after a hearing in determining if an individual is disqualified for unemployment insurance benefits

Employee appealed the decision of the Unemployment Insurance Appeals Board that she was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

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