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August 30, 2019

Suing for alleged defamation following the publication of an article concerning "official governmental activities"


New York's Civil Rights Law §74 shields publishers from civil liability for claims of defamation when the alleged defamatory statements are accurate reports about official government events and activities.*

Supreme Court denied Petitioner's motion to strike the Respondent's Civil Rights Law §74 defense** to allegations of defamation, holding that "Civil Rights Law §74 ... confers an absolute privilege on a fair and true report of any official proceeding."

Supreme Court also noted that "a newspaper article which relies upon the findings of an official proceeding [does not] lose the protection of the statute merely because its publication precedes release of the official findings. 

Indeed, observed the court, even the announcement of an investigation by a public agency, made before the formal investigation has begun, is protected as a report of an official proceeding within the contemplation of §74, as is a report of an ongoing investigation, as long as it is accurate"

In addressing Petioner's appeal challenging the Supreme Court's ruling concerning Respondent's §74 defense, the Appellate Division identified as covered by the rubric "official government activities" was an article that "hyperlinked a CNN article and the embedded dossier compiled by Christopher Steele, which included a confidential report containing the alleged defamatory statements" about Plaintiffs.

The Appellate Division, sustaining the Supreme Court's ruling, opined that the Plaintiffs "would have concluded that there were official proceedings, such as classified briefings and/or an FBI investigation concerning the dossier as a whole, including the confidential report relating to plaintiffs."

* Civil Rights Law§ 74 provides that "A civil action cannot be maintained against any person, firm or corporation for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding." The same is true with respect to "any heading of the report which is a fair and true headnote of the statement published."

** The Supreme Court's ruling is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2018/2018_30834.pdf

The Appellate Division's decision is posted on the Internet at:

August 29, 2019

The tests applied by courts in New York State to determine if a grievance alleging a violation of a provision in a public sector collective bargaining agreement is arbitrable


In Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, the Court of Appeals has recognized a two-step process for a court to determine when a particular public sector grievance is subject to arbitration. The court must first determine if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance at issue. If there is no such bar, the court must then examine the collective bargaining agreement to determine if the parties have agreed to arbitrate the dispute at issue.


In this CPLR Article 75 action the petitioner [Employer] sought a permanent stay of arbitration of a labor organization's [Union] demand that an adverse contract grievance decision be submitted to arbitration. Supreme Court rejected the Employer's attempt to stay arbitration of the matter and, on appeal, the Appellate Division sustained the lower court's ruling.

The Appellate Division, noting that the Employer did not claim that was a statutory, constitutional or public policy impediment to submitting the matter to arbitration, said its review of the Employer's appeal was focused on whether the parties had agreed to arbitrate the dispute at issue.

The relevant clause in the controlling collective bargaining agreement [CBA] provided that "i]n the event the grievance is not resolved after the final step in the grievance procedure [set out in the CBA], [either party] may submit [the matter] to arbitration in accordance with the procedure [set out in the CBA] within ten (10) days of the close of the Stage Three review." A grievance was defined as "any claimed violation, misinterpretation, or inequitable application of the terms and conditions" set out in the CBA.

This broad arbitration clauses, opined the Appellate Division, includes matters where a reasonable relationship between the CBA and the matter to be arbitrated exists. As the CBA includes terms and conditions of employment, including a provision that office hours for the grieving employees  involved "shall be from 8:00 a.m. to 5:00 p.m. Monday through Friday," the court found that "a reasonable relationship exists between the subject matter of the grievances and the general subject matter of the CBA, and [thus] the matter is arbitrable."

The court rejected the Employer's argument that "there is no valid agreement to arbitrate because the grievants' claims pertain to a 1995 Memorandum of Agreement (MOA) between the parties and not the CBA."

However, said the court, "the [employees being represented by the Union] have alleged a violation of the CBA and not the separate MOA" and whether there is merit to the Employer's contention that there is no violation of the CBA because the MOA remains enforceable and permits the 11:15 a.m. to 7:15 p.m. shift is an issue for the arbitrator to resolve.*

Addressing the Employer's claim that the demand for arbitration was untimely, the Appellate Division ruled that the Employer had failed to meet its "initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired."

Accordingly, the Appellate Division unanimously affirmed the Supreme Court's ruling without costs.

* In addition, the court pointed out that the CBA does not contain an express provision requiring strict compliance with the contractual grievance procedures as a condition precedent to arbitration but, instead, provides that the arbitrator will consider whether grievance "procedures have not been followed" in determining whether to deny the grievance.

The decision is posted on the Internet at:

August 28, 2019

Violating a "last chance agreement" to avoid disciplinary action


A tenured assistant principal [Plaintiff] assigned to host an award ceremony arrived at the school admittedly under the influence of alcohol. Disregarding the instructions of his principal, Plaintiff left the school in his car and was thereafter arrested for driving while intoxicated. His arrest was reported in the local media and was discussed by parents and students on social media.

In consideration of the fact that Plaintiff had been a well-regarded teacher and administrator, the school district [Respondent] elected not to initiate disciplinary proceedings but instead offered Plaintiff a "last chance agreement" requiring Plaintiff to satisfy various counseling and reporting requirements and which provided that if, in the future, Plaintiff tested "positive for alcohol on school grounds or was convicted of an alcohol-related offense, he would be terminated without a hearing under Education Law §3020-a." Plaintiff agreed to the terms set out in this "last chance agreement."*

Subsequently faculty and staff reported that Plaintiff appeared to be intoxicated at a school dance at which he was the administrator in charge. Respondent took no disciplinary action then because it was unable to verify those suspicions by administering a blood alcohol test on petitioner. Shortly thereafter Plaintiff was arrested for driving while intoxicated after he refused a breathalyzer test. 

As the last chance agreement provided for Plaintiff's immediate termination without a hearing only if he tested positive for alcohol or was convicted of an alcohol-related offense, Respondent initiated disciplinary proceedings pursuant to §3020-a of the Education Law. 

The seven charges filed against Plaintiff including allegations that he failed to comply with the last chance agreement and violated school policies by keeping empty alcohol bottles in his desk at school. After a three-day disciplinary hearing, the Hearing Officer sustained all seven charges and accepted Respondent's recommendation that Plaintiff be terminated from his position.

In response to Plaintiff's initiating this proceeding under Education Law §3020-a (5) and CPLR §7511 seeking to vacate the arbitration award, Respondent cross-moved to confirm the arbitration award. Supreme Court vacated certain charges and specifications and certain factual findings of the Hearing Officer and found the penalty to be shocking to the conscience. Respondent appealed and the Appellate Division reversed the lower court's judgment.

In vacating the arbitration award in part, the Supreme Court determined that, among other things, [1] the parties "mutually rescinded" the last chance agreement when they proceeded to arbitration, thus rendering that agreement void and [2] Respondent elected its remedy by proceeding to arbitration, thereby foregoing any prospective disciplinary action against Plaintiff under the last chance agreement. 

In addition, Supreme Court found that the Hearing Officer's recommendation of termination was shockingly disproportionate to Plaintiff's misconduct "inasmuch as that misconduct did not occur on school grounds," remitting the matter to a different hearing officer to conduct a hearing on the appropriate sanction for the charges sustained.

Respondent appealed and the Appellate Division reversed the lower court's judgment, explaining:

1. There was no evidence in the record that, by proceeding to arbitration, the parties intended to cancel or mutually rescind the last chance agreement. Rather, at the disciplinary hearing, both parties agreed that the last chance agreement remained valid and enforceable;

2. Supreme Court erred in its determination that the last chance agreement was rendered unenforceable under the election of remedies doctrine inasmuch as that doctrine has no application to the last chance agreement or to the facts of this case, opining that [i]f it was the intent of the parties to preclude [Respondent] from seeking a penalty for [Plaintiff's] failure to comply with the last chance agreement if [Respondent] 'employed the procedures set forth by [Education Law § 3020-a], it was incumbent upon them to have specifically so stated' in the agreement" and nothing in the agreement indicated that Respondent was limited to disciplining Plaintiff under the last chance agreement for future misconduct or that Respondent could not initiate a disciplinary hearing with respect to Plaintiff's violations of the last chance agreement itself;

3. Supreme Court erred in vacating the Hearing Officer's conduct findings as Education Law §3020-a (5) permits judicial review of a hearing officer's decision but expressly provides that "the court's review shall be limited to grounds set forth in" CPLR 7511 whereby "[a]n arbitration award may not be vacated unless it violates a strong public policy, is irrational, or clearly [e]ceeds a specifically enumerated limitation on the arbitrator's power." In the words of the Appellate Division, "Where, as here, the parties are "subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious ...." and "it must be in accord with due process." and "the record establishes that those findings were rational, had evidentiary support, and were not arbitrary and capricious, impermissibly based on uncharged conduct, or otherwise improper; and

4. Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, Supreme Court erred in vacating the penalty imposed by the arbitrator, commenting that "Unless an irrationality appears or the punishment shocks one's conscience, sanctions imposed by an administrative agency should be upheld." Given the seriousness of Plaintiff's offenses and his position as a role model for young adults, the Appellate Division said it could not conclude that the Hearing Officer's penalty of termination was shocking to the conscience and in vacating the penalty Supreme Court inappropriately substituted its judgment for that of the Hearing Officer.

* Taylor v Cass, 122 A.D.2d 885, illustrates impact of a settlement agreement providing for a disciplinary probation award that provided that the appointing authority could summarily terminate the employee without any hearing if, in the opinion of his superior, "his job performance was adversely affected by his intoxication on the job during the next six months.”

The decision is posted on the Internet at:

August 27, 2019

Determining service credit for the purpose of attaining tenure by educators serving as substitute employees


As this ruling by the Court of Appeals [Court] indicates, a substitute teacher may satisfy probationary service requirements using "Jarema credit"* attain tenure as §2509(1)(a) of the Education Law allows a teacher to apply service as a "regular substitute" towards completion of the probationary term required for tenure.

If a probationer substitutes for a teacher who is on leave for an indefinite period, is he or she a "regular substitute" and thus eligible for Jarema credit? Yes said the Court. Further, the teacher can be deemed to have earned this credit retroactively, even if the district explicitly described the conditions of employment differently in the hiring process.

In other words, one can become a "regular substitute" by virtue of one's service even if the job was described differently at is onset. The Court explained that the "ambiguous statutory term 'regular substitute' should be defined by the actual nature and continuity of the substitute service, not by the anticipated duration of the replaced teacher's absence."

Jarema credit may open the door to tenure by estoppel should a school board accepts the continued services of a teacher, but fail to take the action required by law to either grant or deny tenure prior to the expiration of the educator's probationary term..

In this instance, a Board of Cooperative Educational Services [BOCES] employed two types of substitute teachers: "per diem substitutes" and "regular substitutes."

Per diem teachers were employed for an indefinite period in order to cover the absences of regular teachers.  Per diem teachers were paid at a daily rate and had limited employment benefits.

In contrast, BOCES' "regular substitutes" were teachers who received a "special appointment for a fixed time." Regular substitutes were typically paid from a salary line temporarily available because the regular teacher was on a leave of absence. Regular substitutes also received a prorated annual salary with full benefits.

In adjudicating an educator's claim that she had attained tenure by estoppel the Court held that  "... as probationary periods are employed to determine if appointees are 'competent, efficient and satisfactory' for purposes of recommending tenure, there is no reason why [the educator's] service following her initial appointment should be considered anything less than time accrued towards reducing the [mandatory] probationary period the statute requires."

Thus opined the Court, tenure evaluations can be made regardless of the title under which the probationer serves. A school board may not undermine the policies behind the tenure system and artificially extend the probationary period by designating a position "acting" or "temporary," said the Court.

In addition, the Court rejected BOCES' argument that sanctioning a "surprise" acquisition of tenure by estoppel would both saddle school districts with the administrative burden of tracking the probationary term for teachers on a day-to-day basis and deny them the full statutory period in which to consider qualifications for tenure.

The Court said that such an argument assumes the wrong perspective on the tenure rules.

It said that its prior opinions has made clear that tenure rules should be read so as to discourage a board's use of technical obstacles and manipulable labels that can deprive a qualified teacher of tenure rights. Further, the distinction between "definite" and "indefinite" leaves does not in fact assure BOCES predictability or certainty since a "definite term" is not a requirement for regular substitute service. Indeed, even where a regular substitute is engaged for a "definite term" to replace a tenured teacher, the absence may end unexpectedly and the tenured teacher can insist upon early return to the encumbered position.

Noting that in this instance the educator had continuous service with BOCES, the Court ruled that she was entitled to Jarema credit that, when combined with her additional service with BOCES, entitled her to tenure.

* Typically referred to by the name of the bill's sponsor, then Member of the Assembly  Stephen J. Jarema, Education Law §2573[1][a], in pertinent part, provides that “Teachers and all other members of the teaching staff, authorized by section twenty-five hundred fifty-four of this article, shall be appointed by the board of education, upon the recommendation of the superintendent of schools, for a probationary period of three years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years … the probationary period shall be limited to one year….”

The decision is posted on the Internet at:

August 23, 2019

A hospital may held liable for violations of the Rehabilitation Act if its staff members are deemed to be acting as "officials" or "policymakers" of the hospital


This decision addresses whether and when hospital staff members may be considered to be acting as "officials" or "policymakers" of the hospital at which they are employed so that their conduct may be attributed to the hospital and thereby establish a Plaintiff’s right to damages on the ground that the defendant hospital was "deliberately indifferent" to a violation of the federal Rehabilitation Act [RA], 87 Stat. 355.*

Here, said the Second Circuit Court of Appeals, the record contains evidence that the hospital staff involved had knowledge of the deprivation of a patient’s right "to an interpreter, had the power to cure that violation, and failed to cure it."

Accordingly, the court ruled that the federal district court's summary judgment in favor of the defendant hospital was inappropriate.

This, said the court, did not mean that a hospital could absolve itself of liability for damages by failing to empower staff members who have contact with patients to cure potential violations of the RA, such as by failing to empower front line staff to procure, as was necessary in this instance, an interpreter for the hearing impaired. 

Indeed, opined the Circuit Court of Appeals, a hospital might be liable precisely because its policymakers failed to put in place a policy that would reasonably enable a patient to obtain the relief guaranteed by the  RA by complaining to the staff with whom the patient has contact. Were such the case, it could be argued that the “policymaker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights will result" from its failing adopt a policy providing for a patient obtaining RA rights to which they were entitled.   

Such an argument, observed the Circuit Court, is especially strong in cases where a regulation expressly addresses a particular need, effectively putting hospital policymakers on notice that they must ensure the hospital’s policies are reasonably capable of meeting that need, specifically citing 45 C.F.R. §84.52(d)(1). 

* 45 C.F.R. §84.52(d)(1) mandates that hospitals subject to its provisions “shall provide appropriate auxiliary aids to persons with impaired sensory, manual, or speaking skills.”

The decision is posted on the Internet at:

August 22, 2019

A party seeking a stay of arbitration alleging a violation of a term set out in a collective bargaining agreement must show that it has not agreed to arbitrate the issue or some other basis barring arbitration


Under what conditions may a party obtain a stay of a demand for arbitration was the significant issue in the litigation involving an alleged violation of a provision set out in a collective bargaining agreement [CBA] negotiated pursuant to Article 14 of the Civil Service Law, commonly referred to as the Taylor Law?

The CBA between the employer [City] and the employee organization [Union] provided that in the event an employee in relevant collective bargaining unit  was  "necessarily absent" from duty as the result of an occupational injury or disease and who was placed on [disability] leave pursuant to §71 of the Civil Service Law, the employee was to receive full salary for a maximum period of nine months during such absence notwithstanding the limitations set out in §71 with respect to "paid leave" while on such disability leave.*

A member of the Union in the collective bargaining unit [Employee] placed on §71 leave and was granted paid disability leave in accordance with the terms set out in the CBA. About a month later the City had Employee examined by its medical expert [Physician]. Physician found that Employee suffered from a mild impairment and that he was then fit perform sedentary work. The Physician also opined that Employee could perform "full duty" within two weeks.

Newburgh directed Employee to report for "sedentary work." When Employee filed to report for work as directed, City removed him from the payroll.

Employee was again examined by the City's medical expert and, again, the Physician found no disability and, again, the City directed Employee to return to work. Employee, again, failed to report for duty as directed.

Next the Union filed a contract grievance claiming that the City had improperly discontinued Employee's disability leave with pay. When the grievance was denied, Union demanded that the matter be submitted to arbitration. City thereupon obtained a court order from Supreme Court staying the arbitration on the grounds that "the issues raised by [Union] were not arbitrable."

The Appellate Division vacated the stay issued by Supreme Court, permitting the arbitration to go forward.

The court pointed out that a party to a collective bargaining agreement may seek a stay of arbitration on the ground that a valid agreement to arbitrate has not been made or under color of some other reason authorized by §7503 of the Civil Practice Law and Rules. In addition, the Appellate Division explained that a court may stay the arbitration when the particular claim to be arbitrated is not within the scope of the arbitration agreement.

Although City had contended that the matter that the Union sought to have submitted to arbitration was not within the scope of the arbitration agreement, the Appellate Division found that the City had not demonstrated any basis justifying staying the arbitration.

The court held that "[A] challenge to the propriety of the City's withdrawal of its grant of paid [disability] leave to [Employee] pursuant to ... the collective bargaining agreement is a claim within the scope of the arbitration clause" set out in the CBA as the agreement, by its terms, provided that "a claim of violation, misinterpretation or misapplication of the terms of a written collective bargaining agreement" was subject to binding arbitration."

The Appellate Division also observed that "the mere fact that the arbitration may entail the incidental interpretation or application of statutes does not compel a different result."

* §71, sometimes referred to as Workers' Compensation Leave, mandates that employees in the classified service be given a leave of absence without pay for at least one year unless the disability is of such a nature as to permanently incapacitate the individual for the performance of the duties of his position. The employee may use sick and other leave or compensatory time credits in order to be retained on the payroll while on §71 leave.

The decision is posted on the Internet at:

August 21, 2019

Challenging the denial of an application for disability retirement benefits when the application is rejected by a "tie vote" by the trustees of the retirement fund

In Guidal v Trustees of the NYC Fire Department Article 1-B Fund, 275 AD2d 458, the Appellate Division demonstrated the difficult test that a claimant faces in attempting to have a court overturn a decision by the trustees of a pension fund denying his application for accidental disability retirement benefits. In Guidal's case the Trustees, by a tie vote, disapproved his application for accidental retirement benefits but approved him for ordinary disability retirement benefits. The court observed that:

"Where the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund ... denies an application for accidental disability benefits as a consequence of a tie vote, the Board’s determination can be set aside on judicial review only if it can be concluded as a matter of law that the petitioner’s disability was the natural and proximate result of a service-related injury."

In the instant CPLR Article 78 action the Supreme Court annulled the determination of the retirement system's Board of Trustees [Board] which, by a tied vote, denied Petitioner's application for accidental disability retirement benefits and remanded the matter to the Board for its further consideration.

The Board appealed and the Appellate Division unanimously reversed the lower court's ruling "on the law" and dismissed the proceeding.

Citing Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Appellate Division explained that "[b]ecause the Board of Trustee's denial of [Petitioner's]  application for accident disability retirement was the result of a tie vote, the issue for the reviewing court was whether there was any credible evidence of lack of causation, i.e., evidence that the disability was not the natural and proximate result of the 1996 service-related accident."  

Other elements considered by the Appellate Division in making its ruling was the fact that :

[1] The record included "some credible evidence of lack of causation, namely, the conservative treatment [Petitioner] received after the accident and [Petitioner's] return to full duty for approximately 14 years before seeking further treatment;" and 

[2] The fact that "neither the Medical Board nor petitioner's physician were able to explain why the purported disabling injury did not prevent [Petitioner] from returning to full time duty for 14 years without further complaint."

The State Comptroller is the sole trustee of the New York State Employees’ Retirement System. Presumably the same analysis would be applied in cases where the determination concerning approving an application for accidental or duty-related disability benefits is at issue.

The decision is posted on the Internet at:

Suspending an employee without pay while disciplinary charges are pending

  
§75 of the New York State Civil Service Law provides that an employee who has been served with disciplinary charges may be suspended without pay for up to 30 days.* If the disciplinary proceeding has not been completed by that date, the individual must be restored to the payroll.

Under certain circumstances, however, the court may decide that the appointing authority is not required to restore the suspended individual to the payroll even though the statutory 30-day period has expired. The decisions in these two cases provide examples of such situations.

First action:

The Plaintiff [Employee] in Decision 1 was served with charges of misconduct. During the §75 hearing that followed, the parties met in an effort to settle the matter.

According to the Respondent [Appointing Authority], an "oral settlement" was reached whereby Employee agreed to her resign from her position. Employee, on the other hand, said that no settlement had been reached. The fact that there was no document formalizing any settlement did not help the situation.

When the Appointing Authority failed to restore Employee to the payroll after she had been suspended without pay for 30 days, Employee sued. A New York State Supreme Court granted Employee's petition for a preliminary injunction enjoining the Appointing Authority from continuing "her suspension without pay" and the Appointing Authority appealed.

Was Employee entitled to the injunction? The Appellate Division thought not, commenting that a preliminary injunction should be granted only:

a. when the moving party has shown a likelihood of ultimate success on the merits;

b.  an irreparable and imminent injury if the injunction is withheld; and

c. that a balancing of the equities favors the moving party.

Deciding that Employee had failed to satisfy any of these elements, the Appellate Division reversed the lower Court's order granting injunctive relief.

What was the reasoning of the Appellate Division? The Court said that "if a fact finder ultimately concludes that [Employee] did resign as part of a disciplinary settlement agreement, she would not be entitled to back pay. As resolution of the question of the claimed settlement may be a determinative factor, since the issue is heavily contested, Employee has not shown a clear likelihood of success on her underlying claim.

Further, the Court decided that Employee did not demonstrate "irreparable injury." As she was only seeking monetary damages, the Court said were she to prevail on the merits her damages can be easily computed and she will be fully compensated for them.

As to the issue of the "balance of equities," the Appellate Division again noted that if Employee wins, she could, and would, be fully compensated for her loss by the Appointing Authority. If, on the other hand, should the Appointing Authority prevail after being forced to pay Employee's salary to her pending a final determination, the Court said that it is much less certain that the Appointing Authority will be able to recoup those payments.

The lesson here is that the terms and conditions of any settlement arrived at in the course of a disciplinary proceeding should be immediately reduced to writing and signed by the parties before they leave the proceeding.


Second action:

The ruling in Decision 2 concerned a related issue - restoration of an individual to the payroll if a court remands a §75 disciplinary determination for reconsideration by the appointing authority.

In this action the employee [Plaintiff] was terminated from her position after being found guilty of §75 disciplinary charges. She appealed and the Appellate Division returned the case to the Employer [Respondent] "for development of appropriate findings supporting the determination to terminate Plaintiff."

In a subsequent appeal Plaintiff contended that she was entitled to reinstatement and back salary retroactive to the date of her termination because the Appellate Division had remanded the appointing authority's original disciplinary determination "for the development of appropriate findings ...." In effect, Plaintiff, in effect, contended that this was the equivalent of a vacating of the determination.

The Appellate Division rejected Plaintiff's theory, indicating that neither the disciplinary determination nor the penalty imposed by the Respondent was  annulled as a result of its remanding the original administrative determination for further action by the appointing authority. Rather, said the Court, it had simply "withheld [its] decision" pending its receipt of the "requisite finding" by the Respondent.

Apparently satisfied that the "requisite finding" of the appointing authority supported its §75 determination and the penalty imposed, the Appellate Division sustained Plaintiff's termination.

In contrast, had the Court decided that the determination was not supported by the record or that the penalty imposed did not satisfy the Pell standard, i.e., dismissal was “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness,” [see Pell v Board of Education, 34 NY2d 222],  it probably would have directed Plaintiff's reinstatement with all, or a portion, of her back salary.

* A collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, the so-called Taylor Law, may provide for an alternative to this statutory provision for suspension without pay, in which case the provision set out in the collective bargaining will control.

The decisions are posted on the Internet at:

           

August 20, 2019

Challenging the denial of an application for disability retirement benefits when the application is rejected by a "tie vote" by the trustees of the retirement fund


In Guidal v Trustees of the NYC Fire Department Article 1-B Fund, 275 AD2d 458, the Appellate Division demonstrated the difficult test that a claimant faces in attempting to have a court overturn a decision by the trustees of a pension fund denying his application for accidental disability retirement benefits. In Guidal's case the Trustees, by a tie vote, disapproved his application for accidental retirement benefits but approved him for ordinary disability retirement benefits. The court observed that:

"Where the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund ... denies an application for accidental disability benefits as a consequence of a tie vote, the Board’s determination can be set aside on judicial review only if it can be concluded as a matter of law that the petitioner’s disability was the natural and proximate result of a service-related injury."

In the instant CPLR Article 78 action the Supreme Court annulled the determination of the retirement system's Board of Trustees [Board] which, by a tied vote, denied Petitioner's application for accidental disability retirement benefits and remanded the matter to the Board for its further consideration.

The Board appealed and the Appellate Division unanimously reversed the lower court's ruling "on the law" and dismissed the proceeding.

Citing Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Appellate Division explained that "[b]ecause the Board of Trustee's denial of [Petitioner's]  application for accident disability retirement was the result of a tie vote, the issue for the reviewing court was whether there was any credible evidence of lack of causation, i.e., evidence that the disability was not the natural and proximate result of the 1996 service-related accident."  

Other elements considered by the Appellate Division in making its ruling was the fact that :

[1] The record included "some credible evidence of lack of causation, namely, the conservative treatment [Petitioner] received after the accident and [Petitioner's] return to full duty for approximately 14 years before seeking further treatment;" and 

[2] The fact that "neither the Medical Board nor petitioner's physician were able to explain why the purported disabling injury did not prevent [Petitioner] from returning to full time duty for 14 years without further complaint."

The State Comptroller is the sole trustee of the New York State Employees’ Retirement System. Presumably the same analysis would be applied in cases where the determination concerning approving an application for accidental or duty-related disability benefits is at issue.

The decision is posted on the Internet at:


Representation rights of unions


Representation questions concerning negotiating terms and conditions of employment usually focus on which union is authorized to represent the employees in a particular collective bargaining unit. This case involved a union that claimed the provisions of a local law binding on one employer were binding on a second employer because both employers were party to a joint agreement with the union.   

The case involved the New York City Health and Hospitals Corporation and the City itself, which are separate legal entities. Both the City and the Hospitals Corporation signed a Citywide Collective Bargaining Agreement with a union.

The Hospitals Corporation decided to "privatize" the security operations at its headquarters by replacing its then security personnel with private security guards.* The union challenged the Corporation's action, contending that it was subject to New York City Local Law 35 which regulated "the privatization of services performed by City employees."

When the Hospital Corporation signed the collective bargaining agreement, did the Corporation become subject to Local Law 35? And, if so, did the services covered include all services or only certain services?

The union cited Article I of the Agreement in support of its position. Article I provided that the union was "the sole and exclusive collective bargaining representative [for employees of the City and the Corporation] on citywide matters which must be uniform for the [covered] employees."

The Appellate Division, however, did not view this provision as mandating uniformity in the terms and conditions of employment for all employees covered by the agreement.

The Court decided that Article I merely recognized the union as the sole bargaining agent for "matters which must be uniform"; it did not affect the autonomy of the Corporation with respect to its making personnel decisions affecting its own employees where city-wide uniformity was not required or implicated.

Dismissing the union's petition, the Court said that even assuming that the Corporation could elect to subject itself to specific laws or rules generally applicable to City employees, it did not do so by entering into the "Citywide Collective Bargaining Agreement."

The decision is posted on the Internet at:

August 19, 2019

Vacating of an arbitration award barred absent a finding that the award violated "strong public policy"


Article 75 of the Civil Practice Law and Rules set out the limited grounds available to the courts for vacating an arbitrator's award. The major exception to this is that an arbitrator's award will be vacated even if it cannot be overturned on the authority of Article 75 if a court determines that it violates strong public policy. However, the party seeking to vacate the award on the grounds that it contravene a strong public policy has a heavy burden to meet to prove its claim.

In this action the arbitrator's award was challenged on the grounds that it infringed on the School District's responsibility to maintain "educational standards" in violation of strong public policy. The Appellate Division disagreed and declined to vacate the award.

At issue was the arbitrator's decision interpreting the agreement with respect to the qualification of two candidates for the position of Faculty Manager. The Court ruled that the award did not infringe on the District's responsibility because:

a. The District conceded that both applicants for the position were qualified for the appointment; and

b. The position of Faculty Manager did not involve a classroom assignment and thus did not infringe on the District's responsibility to maintain classroom standards.

Similarly in Matter of Martin ex rel Lekkas, 86 AD2d 712, the Appellate Division held that an individual’s failure to possess a valid license otherwise required for the position is not fatal to the employee’s continuation in service if he or she is not performing duties set out in the job description for the position for which the license is otherwise required.

Lekkas, a permanent Assistant Clinical Physician was employed by the then Office of Mental Retardation and Developmental Disabilities, was never licensed to practice medicine in New York or in any State of the United States or in the Dominion of Canada. Summarily terminated from his position pursuant to §6522 of the Education Law,*Martin, representing the estate of Lekkas, initiated an Article 78 proceeding alleging that both the Federal and State Constitutions as well as §50.4 of the Civil Service Law required that Lekkas should have been given a pre-termination hearing or, alternatively, the opportunity to respond to the reasons given by the State for his discharge.

The Appellate Division, noting that the duties of an Assistant Clinical Physician were both defined and changed by administrative fiat, found that at the time of Lekkas' termination he was not practicing medicine without a license and, therefore, the court "must look to the Civil Service Law rather than the Education Law to determine his rights."

Conceding that Lekkas would not have been eligible either to take the required examination for the position or to be appointed if successful had the announcements for civil service examinations for positions as physicians in State hospitals had reflected the 1971 statutory changes, the Appellate Division, citing Civil Service Law §50.4, found that "it is equally clear that [the appointing authority] could not terminate [Lekkas] on the ground of disqualification, in the absence of fraud, more than three years after the date of such appointment".

Accordingly, the Appellate Division sustained Supreme Court's ruling annulling Lekkas' discharge and ordering his reinstatement with back pay and benefits.

* §6522 of the Education Law provided that "Only a person licensed or otherwise authorized under this article shall practice medicine or use the title physician."

The school district decision is posted on the Internet at:

August 16, 2019

An employer that negligently or recklessly punishes an employee as a proximate result of a discrimination complaint filed by a third party may be liable under Title VII


In this appeal from a federal district court's adverse decision flowing from a student's allegation of sexual misconduct by a member of the school's faculty [Plaintiff], the U.S. Circuit Court of Appeals, 2nd Circuit, found that the Plaintiff in this action had alleged facts from which it may plausibly be inferred that the employer [University] served as a conduit for the student’s discriminatory intent and that this discriminatory intent may be imputed to the University.

The Circuit Court opined:

"(1) Where a university (a) takes an adverse employment action against an employee, (b) in response to allegations of sexual misconduct, (c) following a clearly irregular investigative or (d) amid criticism for reacting inadequately to allegations of sexual misconduct by members of one sex, these circumstances support a prima facie case of sex discrimination; [and]

"(2) When contesting an inference of bias based on procedural irregularity, an employer cannot justify its abandonment of promised procedural protections by recharacterizing specific accusations in more generic terms; [and]

"(3) Where (a) a student files a complaint against a university employee, (b) the student is motivated, at least in part, by invidious discrimination, (c) the student intends that the employee suffer an adverse employment action as a result, and (d) the university negligently or recklessly punishes the employee as a proximate result of that complaint, the university may be liable under Title VII."

Accordingly the Circuit Court held that the Plaintiff’s amended complaint stated a claim for unlawful sex discrimination by the University and vacated the district court's judgment. The court then "remanded the cause to the District Court for further proceedings consistent with this opinion."

In so doing the Circuit Court also suggested that the district court “consider Plaintiff's 'cat's paw' theory" with respect to the University's liability. 

This theory, said the 2nd Circuit Court, was derived "from a fable conceived by Aesop, put into verse by La Fontaine in 1679, and injected into United States employment discrimination law" by  Seventh U.S. Circuit Court of Appeals Judge Richard Posner in his 1990 decision in Shager v Upjohn Co., 913 F.2d 398. In this instance the 2nd Circuit Court commented that the district court "should consider [Plaintiff’s] allegations under such a theory as ... [a]t its core, a 'cat’s paw' case simply reflects a slight variation on the standard principles of vicarious liability."

The 2nd Circuit Court further noted that "[i]n the Title VII context, it is well-settled that employers may be held vicariously liable for the conduct of their agents" if a plaintiff establishes "(1) that the employer’s agent (a) was motivated by the requisite discriminatory intent, and (b) effected the relevant adverse employment action; and (2) that the agent’s conduct is imputable to the employer under general agency principles."

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/995fa96b-8187-4ec9-9079-2c17cf2ae632/1/doc/18-3089_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/995fa96b-8187-4ec9-9079-2c17cf2ae632/1/hilite/

August 15, 2019

Using drone aircraft in law enforcement

In response to a number of requests for legal information on the use of drones, also known as unmanned aerial vehicles (UAVs) or unmanned aircraft systems (UAS), in law enforcement, AELE established a new web page in response to those requests at


The page contains discussion of, and links to, case law relevant to the use of drones in law enforcement and relevant federal regulations and state statutes and regulations (as currently adopted by 41 states), useful secondary material, and select sample agency policies.

Determining prevailing party damages and attorney's fees awards


Plaintiff filed a §1983 complaint against the City of New York and certain individual police officers [Defendants] for alleged deprivations of his constitutional rights.

Defendants presented Plaintiff with an offer of judgment pursuant to Federal Rule of Civil Procedure §68 in the amount of $10,001 and reasonable attorney’s fees, expenses, and costs incurred “to the date of [the] offer.” Plaintiff accepted the offer, but the Defendants were unable to agree upon the sum of attorney’s fees, expenses, and costs to be paid.

Plaintiff filed a motion with the district court for an award of reasonable attorney’s fees, expenses, and costs that included the hours Plaintiff’s solo practitioner attorney spent on clerical tasks and incurred preparing the fee application. The federal district court granted the application but reduced the requested hourly rate because of the simple, “relatively straightforward” nature of the case, and imposed a ten percent across-the-board reduction to the fee award to account for clerical tasks performed by the attorney.

The U.S Circuit Court of Appeals, Second Circuit, affirmed the district court’s decision to reduce Plaintiff’s attorney’s reasonable hourly rate in light of the simple nature of this case, as well as the district court’s decision to reduce the hours claimed through an across-the-board reduction to reflect the clerical work performed.

The Circuit Court, however, reduced and vacated the district court’s decision to award Plaintiff's attorney’s fees for the work incurred preparing the fee application because the express terms of the accepted Rule 68 offer of judgment limit the fees recoverable to those incurred “to the date of [the] offer.”

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/ebab1879-2677-413e-ac0d-a7c11adc7f01/3/doc/17-2823_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/ebab1879-2677-413e-ac0d-a7c11adc7f01/3/hilite/

August 14, 2019

Name clearing hearings


From time to time a public employee who has been dismissed from his or her position and who is not entitled to a pre-termination hearing as a matter of law or pursuant to the terms of a collective bargaining agreement demands a "name-clearing hearing." The instant case involves such a situation.

The Petitioner was terminated from his position with the New York City School District [School District] following allegations he was involved in incidents of  "fiscal improprieties, gross mismanagement and outright theft." After a "confidential draft" report concerning the matter by the "Auditor General" was given to, and reported by, a newspaper, Petitioner demanded a "name-clearing hearing."

On its face, this satisfied the two basic requirements courts consider in determining if a name-clearing hearing is required:

(1)  allegations that if untrue, tend to defame an individual; and

(2) publication or dissemination of such information by the employer to the public.

Finding that in the Petitioner's case a name-clearing hearing was warranted, a New York State Supreme Court judge summarized the rationale underlying  a public officer's or public employee's right to a name-clearing hearing as follows:

"A government employee is deprived of a liberty interest where his or her employment has been terminated based on allegations which place, at stake, his name, reputation, honor and integrity."

The Court ruled that Petitioner was entitled to a name-clearing hearing at which he could be represented by an attorney if he wished and was to be "given an opportunity to examine all reports, face his accusers and, if possible, refute the charges."

The decision also notes that an employee is not required to establish the falsity of the charges in order to be entitled to a name-clearing hearing because that is the function of the hearing itself. The School District had contended that in order to be entitled to a name-clearing hearing, the individual had to first demonstrate that the charges alleged by the employer were untrue.

Courts, however, have ruled that even though an individual is successful in "clearing" his name, that, standing alone, does not automatically result in the Petitioner's reinstatement to his former position.

The decision is posted on the Internet at:

August 13, 2019

Reasons why motions to dismiss an Article 78 action relying on the doctrines of res judicata, collateral estoppel or an alleged "failure to exhaust administrative remedies" may be rejected by the court


Among the issues addressed by the Appellate Division in its review of an appeal from an Article 78 decision by Supreme Court was the authority of a school superintendent to suspend a high school principal.

Noting that Education Law §2566(6) grants a superintendent limited authority "to suspend a ... principal ... until the next regular meeting of the board, when all facts relating to the case shall be submitted to the board for its consideration and action,"  the Principal alleged that the City School District's Board of Education [Board] never ratified or approved the suspension at "the next regular meeting of the board," and therefore there was no authority for the continued the suspension.

In rebuttal, the Board contended that as that issue was considered in the course of an earlier arbitration and thus judicial review of the Principal's claim was barred by the doctrines of res judicata and collateral estoppel.

The Appellate Division disagreed with the Board's argument, explaining that the issues raised in this litigation by the Principal were not identical to those raised during the prior arbitration. Accordingly, the court ruled that neither doctrine served as a bar to judicial review of the issue under the circumstances.

Another argument advanced by the Board was that Principal had failed to exhaust her administrative remedies prior to commencing this Article 78 action. Principal, however, argued that "exhaustion of administrative remedies" was not a condition precedent to initiating litigation in this instance.

Noting that the Principal had, in fact, filed a "contract grievance" based on an alleged violation of the relevant collective bargaining agreement,** the Appellate Division opined that this was of no moment because "[t]he issues presented and the remedies sought in each forum were separate and distinct." Thus, explained the court, exhaustion of administrative remedies provided by a collective bargaining agreement is not necessary "where, as here, the [Principal] alleges violations of the Education Law, not violations of the agreement."

Further, said the court, although Education Law §310 provides, in relevant part, that any party aggrieved by an official act or decision of school authorities "may appeal by petition to the [C]ommissioner of [E]ducation." The Commissioner, however, exercises primary jurisdiction only where the matter involves an issue requiring his or her specialized knowledge and expertise. Here the Appellate Division concluded that Principal's contention with respect to §2566 of the Education Law "requires no more than the interpretation and application of the plain language of that statute for which no deference to the [Commissioner of Education] is required."

Finally, the Appellate Division found that the Article 78 petition had not been rendered moot as the result of a subsequent investigation into additional alleged improprieties by the Principal as the Board had neither alleged nor submitted evidence that the Board, in contrast to the Superintendent, had suspended the Principal in compliance with Education Law §2566(6) in connection with such new allegations.

The Appellate Division reversed the Supreme Court's judgment "insofar as appealed from," reinstated Principals' petition, and gave the Board "20 days from service of the order of this Court with notice of entry to serve and file an answer" to Principle's Article 78 action.

* The doctrines of res judicata and collateral estoppel, sometimes referred to as "issue preclusion,"  bar the relitigation of a "cause of action" once there has been judicial or quasi-judicial decision addressing the issue on its merits.

** The arbitration resolved whether the placement of an employee on paid administrative leave pending an investigation into allegations of misconduct constituted a violation of Article 4A of the controlling collective bargaining agreement. Article 4A provided that "no administrator shall be disciplined, reprimanded, reduced in rank or compensation or deprived of any professional advantage without cause."

The decision is posted on the Internet at:

Some reasons why motions to dismiss an Article 78 action relying on the doctrines of res judicata, collateral estoppel or an alleged "failure to exhaust administrative remedies" may be rejected by a court


Among the issues addressed by the Appellate Division in its review of an appeal from an Article 78 decision by Supreme Court was the authority of a school superintendent to suspend a high school principal.

Noting that Education Law §2566(6) grants a superintendent limited authority "to suspend a ... principal ... until the next regular meeting of the board, when all facts relating to the case shall be submitted to the board for its consideration and action,"  the Principal alleged that the City School District's Board of Education [Board] never ratified or approved her suspension at "the next regular meeting of the board," and therefore there was no authority for her continued suspension.

In rebuttal, the Board contended that the issue was considered in the course of an earlier arbitration* and thus judicial review of the Principal's claim was barred by the doctrines of res judicata and collateral estoppel.** 

The Appellate Division disagreed with the Board's argument, explaining that the issues raised in this litigation by the Principal were not identical to those raised during the prior arbitration. Accordingly, the court ruled that neither doctrine served as a bar to judicial review of the issue under the circumstances.

Another argument advanced by the Board was that Principal had failed to exhaust her administrative remedies prior to commencing this Article 78 action. Principal, however, argued that "exhaustion of administrative remedies" was not a condition precedent to initiating litigation in this instance.

Noting that the Principal had, in fact, filed a "contract grievance" based on an alleged violation of the relevant collective bargaining agreement, the Appellate Division opined that this was of no moment because "[t]he issues presented and the remedies sought in each forum were separate and distinct." Thus, explained the court, exhaustion of administrative remedies provided by a collective bargaining agreement is not necessary "where, as here, the [Principal] alleges violations of the Education Law, not violations of the agreement."

Further, said the court, although Education Law §310 provides, in relevant part, that any party aggrieved by an official act or decision of school authorities "may appeal by petition to the [C]ommissioner of [E]ducation," the Commissioner exercises primary jurisdiction only where the matter involves an issue requiring his or her specialized knowledge and expertise. Here, however, the Appellate Division concluded that Principal's contention with respect to §2566 of the Education Law "requires no more than the interpretation and application of the plain language of that statute for which no deference to the [Commissioner of Education] is required."

Finally, the Appellate Division found that the Article 78 petition had not been rendered moot as the result of a subsequent investigation into additional alleged improprieties by the Principal as the Board had neither alleged nor submitted evidence that the Board, in contrast to the Superintendent, had suspended the Principal in compliance with Education Law §2566(6) in connection with such new allegations.

The Appellate Division reversed the Supreme Court's judgment [1] "insofar as appealed from," [2] reinstated Principals' petition, and [3] gave the Board "20 days from service of the order of this Court with notice of entry to serve and file an answer" to Principal's Article 78 action.

* The arbitration resolved whether the placement of an employee on paid administrative leave pending an investigation into allegations of misconduct constituted a violation of Article 4A of the controlling collective bargaining agreement. Article 4A provided that "no administrator shall be disciplined, reprimanded, reduced in rank or compensation or deprived of any professional advantage without cause."

** The doctrines of res judicata and collateral estoppel, sometimes referred to as "issue preclusion,"  bar the relitigation of a "cause of action" once there has been judicial or quasi-judicial decision concerning the issue on its merits.

The decision is posted on the Internet at:

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Please Note:

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Text prepared by Harvey Randall except as otherwise noted. Randall, former Principal Attorney, New York State Department of Civil Service, also served as Director of Personnel for the State University System; as Director of Research, Governor’s Office of Employee Relations; and as Staff Judge Advocate General, New York Guard. He has an MPA from the Maxwell School, Syracuse University and a J.D. from Albany Law School.