Subpoena Duces Tecum

Subpoena Duces Tecum
Bd. of Educ. v Hankins, 294 A.D.2d 360

From time to time one reads about a case involving the serving of a subpoena duces tecum.

The purpose of a subpoena duces tecum is to compel the production of documents that are relevant and material to facts at issue in a pending judicial or administrative proceeding.

On occasion a hearing officer may be asked to issue a subpoena duces tecum in the course of a disciplinary action. Sometimes an attorney will attempt to obtain such information by serving an "attorney's subpoena" on the employer.

To obtain state documents, however, a judicial subpoena duces tecum -- i.e., a subpoena issued by a court having jurisdiction -- is required if the State entity holding the documents sought by the employee declines to provide them when requested to do so.

Alfred Hankins, a New York City schoolteacher, was served with disciplinary charges pursuant to Section 3020-a of the Education Law. In the course of the disciplinary hearing, Hankins served a subpoena duces tecum on the New York City Board of Education requiring it to produce the names and addresses of certain students. The Board asked Supreme Court to quash the subpoena duces tecum served upon it by Hankins, The court granted the motion to quash.

The Appellate Division affirmed the Supreme Court's decision quashing Hankins' subpoena. The problem here, said the Appellate Division, is that Hankin attempted to use the subpoena duces tecum improperly. Such a subpoena, said the court, "may not be used for purposes of discovery or to ascertain the existence of evidence."

In this instance, said the court, Hankins wanted the subpoena in order "to discover the names, addresses, and telephone numbers of the students in the class on the day or days when his misconduct allegedly occurred." Accordingly, concluded the court, the subpoena was properly quashed by Supreme Court.

Authority of the arbitrator to fashion a remedy

Authority of the arbitrator to fashion a remedy
CCNY v Aiello, 295 A.D.2d 163

In the Aiello case, the significant issue concerned the authority of the arbitrator to fashion a remedy. The Appellate Division said that all limitations on the authority of the arbitrator set out in the collective bargaining agreement had to be observed by the arbitrator.

The case arose after the City University of New York decided not to reappoint Professor Rita Aiello for the 1999-2000 academic year. Aiello filed a grievance in accordance with the collective bargaining agreement. Ultimately the arbitrator ruled in her favor and directed that:

1. City University reappoint Aiello for one academic year if so recommended by a select faculty committee; and

2. All future reappointment decisions concerning Aiello be made by a select faculty committee.

The Appellate Division sustained a State Supreme Court decision that vacated that part of the arbitration award directing that all future reappointment decisions concerning Aiello be made by a select faculty committee.

The Appellate Division pointed out that although relevant provision of the collective bargaining agreement -- Section 20.5(c)(1) -- authorized the arbitrator to direct that a grievant's reappointment be decided, in effect, by a select faculty committee, "the same section also limits any such substitute decision making to "the action from which the grievance arose."

Here the grievance was triggered solely by University's decision not to reappoint Aiello for the 1999-2000 academic year. Thus, said the court, by directing that any future reappointments of Aiello had to be decided by a select faculty committee, the arbitrator exceeded the authority as set out in Section 20.5(c)(1) of the agreement.

Were this not sufficient, the Appellate Division also commented that the arbitrator had violated another contract provision -- Section 20.6. Section 20.6 provides that the arbitrator may not modify or amend the collective bargaining agreement.

In addition, the decision notes that the fact that there was some "arbitral precedent for an award like that rendered" by the arbitrator in Aiello's case cannot be relied on by her, citing New York City Transit Authority v Patrolmen's Benevolent Association, 129 AD2d 708, appeal dismissed 70 NY2d 719.

Also rejected was Aiello's argument that "the decision-making process resulting in the denial of her reappointment for the academic year 2001-2002 was so tainted as to demonstrate the truth of the arbitrator's forecast that [the University] was incapable of making fair academic judgments in her case." The appropriate course of action, said the court, would be for Aiello to again resort to the contract grievance procedure if she believed she was improperly denied reappointment in the future. 

School Board review of personnel records

School Board review of personnel records
Matter of Meyer and Pavalow and the Katonah-Lewisboro Union Free School, Commissioner of Education Decision No. 15,436

Two members of the Katonah-Lewisburg School Board asked to have personnel records of certain employees and former employees of the District brought to a Board meeting in order "to enable the Board to carry out its legal responsibilities under the Education Law." When the full board declined to go into executive session to discuss these files, the two board members appealed to the Commissioner.

The Commissioner denied the appeal, observing that “The record is devoid of any evidence that petitioners articulated specific reasons to the superintendent or the board, at any time prior to the board's vote denying their requests to review the records.” 

As the two board members failed to state specifically how reviewing these records would enable to the board to carry out its legal responsibilities, the Commissioner determined that the board's refusal to adjourn into executive session was neither arbitrary nor capricious and thus there was no violation of Part 84 by the Board.

Limiting an employee’s elegibility of overtime when he or she becomes eligible for retirement

Limiting an employee’s elegibility of overtime when he or she becomes eligible for retirement  

MacKinnon v City of New York HRA, USCA, 2^nd Circuit, 08-1171-cv

[N.B. This is a Summary Order by the Second Circuit Court of Appeals. Second Circuit rulings by summary order do not have precedential effect.]

John A. MacKinnon alleged that the New York City Human Resources Administration had unlawfully discriminated against him in violation of the federal the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621. MacKinnon contended that Human Resources had unlawfully discriminated against him because of his age when it (1) decided to reduce his overtime hours because of "concern over his age" and (2) because he was "singled out for such treatment."

A federal district court judge dismissed his complaint and the Circuit Court of Appeals affirmed the lower court’s ruling, observing that the factual record did not support any of MacKinnon’s claims.

Rejecting MacKinnon theory of unlawful discrimination, the Court of Appeals said that the record indicated that the City's Human Resources Administration had reduced his "overtime hours" for two reasons:

1. “because [MacKinnon] appeared on a list of New York City’s top fifty overtime earners (a politically unpopular distinction),” and

2. “because [MacKinnon] had become eligible for retirement and his pension benefits would be based on his compensation for his last twelve months of work.”

The court held that “An employment decision motivated by pension costs, even when strongly correlated with age, is not an ADEA violation,’ citing Hazen Paper v. Biggins, 507 U.S. 604.

Termination for disruptive behavior claimed to violate the State’s Human Rights Law

Termination for disruptive behavior claimed to violate the State’s Human Rights Law
Robinson v NYC Dept. of Corrections277 A.D.2d 76

The appointing authority orders an employee who is exhibiting "disruptive behavior" to report for a drug test or for a physiological evaluation. Does such a directive constitute unlawful discrimination on a theory that the employer has a perception that the employee has a disability? Such directives were the basis for New York City corrections officer Michael Robinson filing discrimination complaints against the New York City Department of Corrections.

According to the decision by the Appellate Division, First Department, Michael Robinson had a number of disciplinary problems over a period of time. In 1984, he accepted a command discipline penalty of two pass days for being absent without leave. This disciplinary action was followed by a "pattern of lateness, unexcused absences and volatile behavior, including use of excessive force against inmates and verbal abuse of superiors and fellow officers."

Robinson was ordered to submit to urinalysis and to undergo psychiatric evaluation in connection with charges of attendance and conduct deficiencies during 1984 and 1985, as well as the investigation of an automobile accident on December 19, 1984.

As a result, Robinson filed a complaint with the New York State Division of Human Rights [DHR] contending that DOC had discriminated against him based on "perceived disabilities." Robinson subsequently filed additional allegations of unlawful discrimination, claiming that DOC had retaliated against him in response to DHR's finding of probable cause by first suspending and then terminating him.

The New York State Division of Human Rights found that DOC had unlawfully discriminated against Robinson by creating a hostile work environment based upon a "belief that [Robinson] was mentally unstable or under the influence of drugs." It awarded Robinson $75,000 in compensatory damages and directed DOC to reinstate him to his former position.

Although the Appellate Division vacated DHR's decision for technical reasons based on "timeliness," it commented that were it to have to decide on the case on its merits, it would find Robinson's allegations of harassment to be baseless.

The Appellate Division explained, "[t]here is ample evidence of [Robinson's] erratic and hostile conduct to warrant subjecting him to physical and psychological evaluation.

The fact the test results were negative were apparently not considered relevant as the court commented that it noted that Robinson's "behavior continued to be erratic."

The court concluded that considering DOC's "responsibility for the safety of its officers as well as the inmates they oversee and its exposure to liability for any injury that might result ... its precautions cannot be viewed as unreasonable or discriminatory."

Electronic surveillance

Electronic surveillance
The Electronic Communications Privacy Act

Employers may find themselves being sued and held liable for unlawful harassment as a result of employees using e-mail and other electronic means of communications which others find offensive or discriminatory.

For example:

1. African-American employees sued, charging that their employer, Morgan Stanley and Company [Owens v Morgan Stanley & Co., USDC, SDNY], denied them promotions because of racial discrimination in violation of Title VII and introduced as evidence racially insensitive e-mail messages transmitted via Morgan Stanley's computers.

2. In Schwenn v Anheuser-Busch, Inc., USDC, NDNY, Schwenn introduced as evidence of a hostile work environment claim "sexually explicit e-mail messages she had received."

3. Postings on the employer's electronic bulletin board were part of the basis for suing the Continental Airlines in federal district court [Blakey v. Continental Airlines Inc., NJ Supreme Court].

As a general rule, courts impose a duty to stop such forms of harassment and discrimination on employers. Employers can take steps to prevent such misuse of its electronic data equipment, or at least be able to claim it tried to do so, by instructing its workers that the use of e-mail and electronic bulletin boards under its control:

1. Cannot be used for distributing discriminatory jokes, statements or other unlawful purposes; and

2. Employees who do so will be disciplined.

Does this mean that employer's may monitor its employees' use of its computer equipment to guard against such misuse?

The Electronic Communications Privacy Act of 1986 [18 USC 2071], prohibits the unlawful intentional interception of e-mail among other forms of protected communication. However, there are a few exceptions to this general rule.

Among the exceptions relevant to the monitoring of e-mail by employers is that the employee may give "consent" to such monitoring. This exception may encourage employers to attempt to negotiate the inclusion of a "consent to monitoring e-mail" in a collective bargaining agreement.

In DuPont and Co., 301 NLRB 12, the National Relations Board ruled that the employer has a duty to bargain with the union over the monitoring of employee e-mails.

Chronic absenteeism policy - multiple penalties challenged

Chronic absenteeism policy - multiple penalties challenged
Seabrook v New York, NYS Sup. Ct., Ia Part 5, Justice Stallman  [Not selected for publication in the Official Reports.]

In an effort to control what it characterized as chronic absenteeism, the New York City Department of Corrections adopted a "Chronic Absence Policy" [Department of Corrections Directive 22583-A].

The policy, which applied to any New York City correction officer who was out sick more than 12 days in a 12-month period (excluding absences for certain specified reasons), provided that an individual determined to have a "chronic absenteeism" problem could lose of one or more of the following discretionary benefits and privileges:

1. Assignment to a steady tour;

2. Assignment to a specified post or duties;

3. Access to voluntary overtime;

4. Promotions;

5. Secondary employment;

6. Assignment to preferential/special units or commands; and

7. Transfers.

Norman Seabrook, as president of the New York City Correction Officers' Benevolent Association, sued the City on behalf of all of the City's correction officers. Seabrook contended that the directive violates Sections 75 and 76 of the Civil Service Law [CSL]. Seabrook's theory: The directive imposes disciplinary sanctions without providing the individual with the notice and hearing required by Section 75 as a condition precedent to initiating a disciplinary action.

The City, on the other hand, contended that its directive did not authorize the imposition of any of the penalties set forth in CSL Section 75(3) and thus does not, on its face, violate CSL Section 75. It also argued that its directive did not violate Section 76, which applies only to persons "aggrieved by a penalty or punishment ... imposed pursuant to [CSL Section 75]."

The court agreed and dismissed Seabrook's petition.

The City conceded that its directive was promulgated unilaterally and does not afford certain of the protections that CSL Sections 75 and 76 provide to employees. However, argued the City, Sections 75 and 76 are inapplicable here because the provisions of the Directive do not include any of the sanctions or penalties set out in CSL Section 75(3) with respect to a correction officer deemed to be a "chronic absentee."

Justice Stallman said that CSL Section 75 specifically limits the imposition of disciplinary penalties to those set out in the section. The employer may not impose penalties exceeding those set by statute. As an example of this principle, Justice Stallman cited Cepeda v Koehler, 159 AD2d 290. In Cepeda the court held that a penalty consisting of forfeiture of 15 vacation days plus the payment of $1,500 fine violated the penalty provisions of Section 75, which only sanctions the imposition of a "single penalty" from among those enumerated.

In another multiple penalty case, Matteson v City of Oswego, 588 NYS2d 472, the Appellate Division overturned the penalties imposed by the appointing authority and remanded the matter for the imposition of a new, appropriate penalty.

Oswego had imposed the following penalties on Matteson: (1) suspension without pay for 30 days; and (2) demotion to a lower grade position; and (3) restitution of $3,699.48.

The Appellate Division held that the penalty given was contrary to law in that "the imposition of multiple penalties was improper" under 75.3 of the Civil Service Law.

As to the issue of the directive providing for restitution of the $3699.48, "restitution" is not one of the authorized penalties set out in 75.3. Thus, it may be necessary for the employer to attempt to recover this amount through a separate proceeding if the employee does not elect to make such restitution.

In contrast, in cases involving the imposition of a penalty by an arbitrator pursuant to a "contract disciplinary procedure" the courts have held that the only limitations on the penalty to be imposed is the sound judgment of the arbitrator.

However, said Justice Stallman, the "[f]acial validity of the Directive does not leave the Union and its members entirely without recourse." The decision notes that the Union had filed an Improper Practice Petition, administratively challenging DOC's unilateral imposition of the Directive with the New York City Office of Labor Relations.

Further, said the court, "implementation of the Directive in a specific individual case may be challenged as arbitrary and capricious."

The decision also points out that "if transfers pursuant to the Directive constitute demotions within the meaning of CSL Section 75, or if actions pursuant to the Directive otherwise constitute substantive penalties enumerated by CSL Section 75, they may be challenged in specific cases where appropriate.

An entity not a party to a collective bargaining agreement negotiated pursuant to the Taylor Law may not be bound by its terms

An entity not a party to a collective bargaining agreement negotiated pursuant to the Taylor Law may not be bound by its terms

Matter of Council of School Supervisors & Adm'rs, Local 1 v New York City Dept. of Educ., 87 AD3d 883

The Council filed a contract grievance in response to a city-wide plan applicable to all city agencies that reduced the number of parking permits issued to municipal workers for parking on city streets. Prior to this, parking permits were distributed “based on demand” rather than the parking spaces actually available.

Council argued that any reduction in the parking permits issued to Council members violated a provision of the collective bargaining agreement between the Council and the Department of Education and thus the Department could not make such a change without first negotiation with it.

The arbitrator agreed, finding that the permits policy change was a proper subject of bargaining as it "constituted a significant and adverse alteration of the bargaining unit members' working conditions" and directed the Department to return all such permits to unit personnel until negotiations could be conducted with the Department over the proposed reductions.

When the Council asked the court to confirm the arbitration award the City “cross-moved” to vacate the award contending that the award (1) violated strong public policy; (2) the arbitrator vastly exceeded his authority; and (3) the arbitration award was irrational. 

The Appellate Division, after noting that it is “well-settled law that an arbitration award will be vacated only where ‘it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation on [the arbitrator's] power,’ citing Matter of Brown & Williamson Tobacco Corp. v Chesley, 7 AD3d 368, decided that in this instance the Department’s arguments met this test.

The court pointed out that the Mayor [and the “non-party” City Department of Transportation] have the power under the NY Constitution [Article IX, § 2(a),(c)] and various State and local law and its Administrative Code to regulate traffic in the City streets, as well as parking. 

Here, said the Appellate Division, the award directs the Department of Education to issue permits, a power vested in the Department of Transportation. In effect, the arbitrator directed Education to exercise a power it did not possess, thus exceeding his authority, which action was compounded by his doing so “in an entirely irrational way.”


In explaining the rationale underlying its ruling, the Appellate Division commented that, in its view, “… the agreement was forged between the Council and Education and Transportation was not a party to the collective bargaining agreement and cannot be bound by it. DOT did not agree to issue parking permits to any CSA member who demanded a permit. 

Freedom of information [FOIL] requests for information concerning health insurance plans

Freedom of information [FOIL] requests for information concerning health insurance plans
Passino v Jefferson-Lewis CSD, 277 A.D.2d 1028

A number of school districts participate in "a municipal cooperative health benefit plan" [SEHP] in order to provide health insurance benefits to the employees and retirees of the participating districts. The plan had been established pursuant to a municipal cooperation agreement.

Passino and another teacher covered under the health insurance plan demanded that SEHP provide it with certain information pursuant to the Freedom of Information Law [FOIL]. SEHP refused and the teachers sued. As it turned out, they won the battle but lost the war.

First the Appellate Division ruled that SEHP is an "agency" subject to FOIL requests because it was created to benefit public employers by allowing them "to share, in whole or part, the costs of self-funding employee health benefit plans; provide ... school districts and other public employers with an alternative approach to stabilize health claim costs; and enhance negotiating power with health providers by spreading such costs among a larger pool of risks" in accordance with Section 4701(a) of the Insurance Law.”

Because SEHP exists only to benefit public employers in their effort to provide health insurance to their employees, the court rejected SEHP's claim that it is "it is a private entity akin to a private insurance company."

However, said the court, the records demanded by Passino are exempt from disclosure under FOIL because SEHP "is a commercial enterprise,” and to permit disclosure of the records would "cause substantial injury to [its] competitive position," citing Encore College Bookstores v Auxiliary Service Corp., 87 NY2d 410.

Employee terminated for falsifying time cards

Employee terminated for falsifying time cards
Colon v Crew, App. Div., Second Dept., 278 A.D.2d 234

A disciplinary hearing officer found Supervisor of School Maintenance Workers Jose Colon guilty of falsifying information his time card on 236 occasions within a 14-month period. The penalty imposed: dismissal.

The Appellate Division rejected Colon's appeal, finding that the determination of the hearing officer was supported by substantial evidence.

As to the penalty imposed, termination, the court said that the penalty was not so disproportionate to the misconduct as to be shocking to one's sense of fairness, citing the Pell doctrine [Pell v Board of Education, 34 NY2d 222].

Unemployment insurance benefits denied individual terminated for to follow employer's procedure

Unemployment insurance benefits denied individual terminated after failing to  follow employer's procedure
Cordova v Commissioner of Labor, 277 A.D.2d 623

Sonia Cordova's application for unemployment insurance benefits was rejected by the Unemployment Insurance Appeals Board after it determined that she was disqualified for benefits because she was terminated from employment for misconduct.

Cordova, the program director at a senior citizen center, was dismissed because she purchased furniture without soliciting bids from vendors or obtaining the requisite written approval for such purchases in violation of her employer's policies and procedures.

The Appellate Division sustained the Board's decision, commenting that "[g]iven [Cordova's] knowing disregard of the employer's purchasing policy and prior conduct, substantial evidence supports the decision of the Unemployment Insurance Appeal Board ruling that claimant engaged in disqualifying misconduct."

NYS Department of Civil Service announces lower employer contributions for health insurance by the State on behalf of certain of its officers, employees and its retirees to take effect October 1, 2011

NYS Department of Civil Service announces lower employer contributions for health insurance by the State on behalf of certain of its officers, employees and its retirees to take effect October 1, 2011

Source: NYS Department of Civil Service Employee Benefits Division

The New York State Department of Civil Service’s Employee Benefits Division has indicated that certain terms of recently negotiated collective bargaining agreements resulting in an increase in the percentages or ratios of employee contributions for NYSHIP premiums for individuals in those collective bargaining units will be imposed on State officers and employees designated managerial or confidential within the meaning of Article 14 of the Civil Service Law [the Taylor Law] and retirees of the State as an employer as well as certain other individuals in the Executive, Legislative and Judicial branches of State government effective October 1, 2011.

In response to this announcement, the Retired Public Employees Association, Inc. [RPEA] has written to the President of the Civil Service Commission and to the State Comptroller on behalf of all State retirees objecting to this action.

In essence the letter to President of the Civil Service Commission RPEA contends that the decreases in the ratios or percentages of the premium or costs of health insurance paid by the State as its “employer contribution” towards the cost of the retiree’s health insurance premium are improper insofar as present retirees are concerned and suggests an amendment to 4 NYCRR 73.3 applying these increases to state officers and employees retiring on or after October 1, 2011 while "grandfathering" the contribution ratios or percentages paid by the State as its employer contribution on behalf of state officers and employees retiring on or before September 30, 2011 as now mandated by §167.1 of the Civil Service Law. 

Click Here  to read RPEA’s letter to the President of the Civil Service Commission.

RPEA’s letter to the NYS Comptroller requests him not to implement any increases in deductions for retiree health insurance contributions from the retiree's Retirement Allowance that might otherwise be required as a result of the Department of Civil Service's action and sets out RPEA’s arguments in support of its request.  

Click Here to read RPEA’s letter to the State Comptroller.