Restoration to eligible list a matter of discretion

Restoration to eligible list a matter of discretion

Lee v Director of Personnel [Not selected for publication in the Official Reports]

Does a person who is discharged for failure to satisfactorily complete the required probationary period have a right to be restored to the eligible list?

In Lee v Director of Personnel a Supreme Court judge said that according to the Rules of the City of New York, restoration to the eligible list was a discretionary determination by the Director of Personnel.

The decision indicated that the discharged employee would have to show that the decision not to restore his name to the eligible list was done in bad faith or that the refusal was arbitrary or capricious.

The court also commented that a probationary employee may be dismissed prior to the end of the probationary term without notice and hearing.

Concerning the employee organization’s duty to honor a unit member’s request to challenge an arbitration award

Concerning the employee organization’s duty to honor a unit member’s request to challenge an arbitration award

Albino v. the City of New York, 80 A.D.2d 261

A situation confronting public employee unions, and ultimately the employer, with increasing frequency is how far the union must go to meet its duty of providing those it represents with “fair representation.”

In Albino the Court provides a number of guidelines concerning this question.

The case arose when Albino was reassigned to a different work location after discussions with the Union. The reassignment was part of a reorganization of the Agency.

After the arbitrator ruled against the employee, the employee wanted the Union to appeal the award to the Court. The Union refused, indicating “that it appears that the arbitrator, in rendering a decision with which we do not agree, did not exceed his powers to interpret the terms of the agreement.”

The employee then attempted to sue the employer. The Court dismissed the case indicating that there was no evidence that there was any lack of fair representation by the Union.

Removal of a reprimand in an employee’s personnel file

Removal of a reprimand in an employee’s personnel file

Opinions of the Attorney General, Informal Opinion 81-28

May a reprimand placed in an employee’s file as a result of a negotiated settlement of a disciplinary action be later removed from the employee’s personnel file?

In Informal Opinion 81-28, the Attorney General indicated that it was permissible “to clear the record of an employee who in the past misbehaved, but who since has performed well.” In this case the Village Board of Trustees wished to remove the reprimand, which the Attorney General viewed as a “legislative act.” Presumably, an appointing officer has similar authority to remove the record of discipline by “executive action”.

Petitioning a court to remove certain officers of a political subdivision of the State

Petitioning a court to remove certain officers of a political subdivision of the State
Haase v DelVecchio, 2011 NY Slip Op 09127, Appellate Division, Second Department

§36 of the Public Officers Law provides for the removal of a town, village, improvement district or fire district officer except a justice of the peace, by the Supreme Court for misconduct, maladministration, malfeasance or malversation in office.

Further, an application for such removal may be made by any citizen resident of such town, village, improvement district or fire district or by the district attorney of the county in which such town, village or district is located may be made to the Appellate Division in the appropriate judicial department.

Daniel Hasse filed a petition seeking to remove Christopher DelVecchio from his public office in the Mastic Fire Department, Town of Brookhaven, Suffolk County, pursuant to §36 of the Public Officers Law.

Citing a number of decisions including Futia v Weaver, 85 AD3d 1165 and Montanio v Rowley, 39 AD3d 653, the Appellate Division dismissed Hasse’s petition holding that the allegations in the petition did not rise to the level of misconduct, maladministration, malfeasance, or malversation necessary to justify the extreme remedy of removal from office pursuant to Public Officers Law §36.

The court, however, rejected DelVecchio’s request for the imposition of sanctions against the Hasse in connection with the proceeding. DelVecchio has asked that the Appellate Division impose sanctions against Hasse pursuant to 22 NYCRR 130-1.1.

22 NYCRR 130-1.1 permits a court, at its discretion, to award a party or attorney in a civil action or proceeding before the court [except where prohibited by law] the costs actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in the regulation. In addition to, or in lieu of, awarding costs, the court, as a matter its exercising its discretion, may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in such frivolous conduct.

For the purposed of 22 NYCRR 130-1.1, conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or

(3) it asserts material factual statements that are false.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09127.htm

Contract grievance arbitration to go forward notwithstanding pending disciplinary action taken against the employee

Contract grievance arbitration to go forward notwithstanding pending disciplinary action taken against the employee

Cattaraugus Central Schools v. Cattaraugus Teacher’s Association, 84 A.D.2d 685

A teacher filed a grievance claiming a violation of the Taylor Law contract. After losing the grievance at Step 3, the teacher sought arbitration. The school district, however, obtained a stay of arbitration of the grievance in the light of a pending disciplinary action involving the teacher.  

On appeal the stay issued by Supreme Court was vacated.

The Appellate Division held that there was no bar to simultaneously pursuing remedies under the agreement and the Education Law, even if there might be different decisions as a result.

According to the decision, the only two questions to be considered by the court in connection with an attempt to stay arbitration are 

1. whether arbitration of the subject matter of the dispute is permissible under the Taylor Law ... and allowable as a matter of public policy (i.e., denial of tenure is not subject to arbitration; alleged procedural violations in connection with consideration for tenure is subject to arbitration is provided for in the agreement) and 

2. whether the parties agreed by the terms of their arbitration clause to submit the dispute to arbitration.