Stopping the hearing creates a problem

Stopping the hearing creates a problem

Swanteson v. City School District of the City of New York, 88 A.D.2d 907

A person serving as a hearing officer may be tempted to terminate or “shorten” a hearing because one or more of the participants becomes unruly or abusive.

A hearing officer did stop the hearing before the employee had an opportunity to make a “statement” specifically permitted by the controlling rules of procedure because of “personal vituperation and ... abrasive behavior, despite repeated warnings.”

The hearing officer then sustained the employee’s unsatisfactory service rating, which was later affirmed by the Chancellor of the Board of Education.

Swanteson sued, arguing that the Board had failed to follow its own procedures.

The Appellate Division agreed and reversing a lower Court, holding that the failure to provide Swanteson with the “Review Format” was an abuse of the chairperson’s discretionary powers to make necessary “adjustments” in the format and insure an “expeditious and non-repetitious presentation ... denied (Swanteson) a substantial right.”

The matter was then sent back to the District with instructions that Swanteson “be given the opportunity to exercise his right to make a presentation and statement on his own behalf as provided in the Review Format.”

The termination of a hearing because of “disruptive behavior” apparently will not be considered a reasonable and proper exercise of discretion.

Tenured employee alleged to have violated the jurisdictions residence requirement is entitled to administrative due process prior to his or her dismissal from the position

Tenured employee alleged to have violated the jurisdictions residence requirement is entitled to administrative due process prior to his or her dismissal from the position

Matter of Tanner, 88 A.D.2d 661

An employee was absent for four months from her job. When she attempted to return, she was told her employment was terminated.

Two weeks later she was served with charges of misconduct pursuant to Section 75 of the Civil Service Law. No hearing was held, however, as the employee was notified she had violated a county ordinance which prohibited a county employee from residing outside the county.

Tanner was also told she was not entitled to a hearing on the question her violation of the residency requirement. When she sued the Appellate Division said that Nassau County was required to reinstate her to her former postion and, further, ordered the County to pay Tanner more than three years of back salary (less other earnings).

The Appellate Division explained that although a municipality may require employees to live within the boundaries of the jurisdiction (see, for example, Section 30, Public Officers Law), it may not, without a hearing pursuant to Section 75 of the Civil Service Law (or its contract equivalent), terminate a tenured employee who violates the residency requirement,

A formal rule or regulation describing the alleged act of misconduct is not required in order to file disciplinary charges against an employee

A formal rule or regulation describing the alleged act of misconduct is not required in order to file disciplinary charges against an employee

Matter of Matter of Foster v Aurelius Fire District, 2011 NY Slip Op 09483, Appellate Division, Fourth Department

Kevin Foster commenced a CPLR Article 78 proceeding challenging the determination finding him guilty of misconduct based upon actions constituting insubordination and failure to follow the chain of command. The penalty imposed: suspension and then reinstatement subject to a probationary period.

When Supreme Court transferred, the Appellate Division addressed the merits of Foster’s arguments “in the interest of judicial economy.”*

As to the merits of the issues raised by Foster, the Appellate Division rejected his argument that the charge against him should have been dismissed because it failed to specify any rule, regulation, policy or bylaw that he violated.

Noting that Forster had conceded at the administrative hearing that he was aware of Fire District's policies with respect to the chain of command, the court said that record establishes that Foster “deliberately circumvented that chain of command to undermine the authority of his superior officer.”

Citing Murphy v County of Ulster, 218 AD2d 832, leave to appeal denied 87 NY2d 804, the Appellate Division held that under the facts of this case Foster’s contention that “a specific act or misdeed must be embodied in a formal rule or regulation before it may serve as a basis for disciplinary action is unavailing."

The court also rejected Foster’s claim that the penalty imposed, which includes suspension followed by a probationary period, is "so disproportionate to the offense as to

* The Appellate Division commented that as Foster did not raise a substantial evidence issue, Supreme Court erred in transferring the proceeding to it.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09483.htm

Independent contractor denied retirement system credit

Independent contractor denied retirement system credit

Senapole v. Field, 88 A.D.2d 1012

The Town of Colonie designated a person to serve as “clerk of the works” for a Town building project. When he was denied retirement credit (he was a member of the Employees Retirement System in connection with previous State employment) he sued the Town.

The Appellate Division held that as the “owner’s representative” Senapole served as an independent contractor and therefore he was not an employee of the Town.

Noting that Senapole had no superior who supervised his work, reported to the Town Supervisor regarding the progress of the project, and that he was not on the Town’s payroll (Senapole was paid by “voucher”), the Court concluded that he was not an employee for the purposes of the Retirement and Social Security Law. 

Union gets employer's records under Freedom of Information Law

Union gets employer's records under Freedom of Information Law

Matter of Quirk v Evans, 116 Misc.2d 554

When the Office of Court Administration resisted a union demand for documents it wanted in connection with its challenge to job classifications, the Union sued.

Supreme Court said the Union had a right to the information it sought to obtain under the Freedom of Information Law.

OCA is not “a court” and its records are not automatically exempt from disclosure.

In the federal sector, the Federal Labor Relations Authority held that the Union had a “special status” as an employee representative and therefore is entitled to information normally outside the (federal) Freedom of Information Act (8 FLRA 108)

An arbitrator’s power to issue an arbitration award is limited to those powers set out in the collective bargaining agreement

An arbitrator’s power to issue an arbitration award is limited to those powers set out in the collective bargaining agreement

Matter of Matter of County of Putnam v Putnam County Sheriff's Employees Assn., Inc., 2011 NY Slip Op 09320, Appellate Division, Second Department

In this CPLR Article 75 action the County asked Supreme Court to vacate an arbitration award. The Sheriff’s Employees Association, on the other hand, cross-petition the court to confirm the award. 

Supreme Court granted the County’s Petition and the Association appealed.

The Appellate Division said that “A court may vacate an arbitration award on the ground that the arbitrator exceeded his power only where the arbitrator's award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power.”

Here, said the Appellate Division, Supreme Court properly found that the arbitrator, in effect, “revised, modified, and altered the parties' agreement, which was specifically prohibited by the arbitrator's powers defined in the parties' collective bargaining agreement.”

Thus, ruled the court, Supreme Court properly granted the County’s petition to vacate the award and denied the Association’s cross motion to confirm the award.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09320.htm

A notice of claim served on a public entity must set out the basis for the claim sufficient for it to investigate the claim

A notice of claim served on a public entity must set out the basis for the claim sufficient for it to investigate the claim

Miller v City of New York, 2011 NY Slip Op 08495, Appellate Division, First Department

In cases where the conduct complained encompasses a New York City Department of Education’s employee’s scope of his or her public employment, a notice of claim in accordance with Education Law § 3813[2] and General Municipal Law § 50-i is required as a condition precedent to commencing an action against the employee of the New York City Department of Education [DOE].

In an action that, in effect, claimed a tortious interference with contractual rights, the Appellate Division that Adam Miller did, in fact, filed a notice of claim which described in detail the time, place and manner of the conduct by DOE’s employee that allegedly interfered with his tenure rights and continued employment with the DOE, as well as his ability to enter into employment with other schools.

Citing DeLeonibus v Scognamillo, 183 AD2d 697, the Appellate Division said that although Miller had not used the words "tortious interference with contract," a notice of claim does not have to set forth a precise legal theory of recovery.

All that is required is that the notice of claim described in “sufficient detail the time, place and manner of the occurrence and a plaintiff's damages to advise the City of the basis for the claim so as to provide it with an opportunity to investigate” the allegations.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08495.htm

Court sets Taylor Law arbitration guidelines

Court sets Taylor Law arbitration guidelines

Board of Education v. West Babylon Teachers’ Association, 52 NY2d 1002

The Court of Appeals has set a number of guidelines concerning arbitration under the Taylor Law.

In Board of Education v. West Babylon Teachers’ Association the court indicated that a stay of arbitration would not be granted where the arbitration would not violate strong public policy and the provisions of the collective bargaining agreement are sufficiently broad and unambiguous as to encompass the subject matter of the dispute.

A stay is appropriate only where the disputed issue falls outside the contract’s arbitration provision or where arbitration would violate public policy (i.e., tenure decisions) and it is for the arbitrator to interpret the substantive provisions of the agreement regarding arbitration.

The case involved the abolition of several positions and a driver education program.

PERB determinations

PERB determinations

     Police Union demand that employer match an employee’s purchase of U. S. Savings Bonds is a mandatory item of negotiations. Spring Valley PBA v. Village of Spring Valley, Case U-4856.

     Involuntary transfer of teacher to another school at the request of the principal following the denial of her grievance by the principal because the teacher complained to the principal’s superiors held to be a violation of the teacher’s statutory right to file a grievance. Elmira School District v. Benson, Case U-4426; 4427.

     BOCES could establish a layoff policy based on an employee’s qualifications and performance, with seniority used only as a tiebreaker. In the Matter of Nassau County BOCES, Case U-4441. (The employees involved were in the non-competitive class and not subject to Civil Service Law layoff provisions).

     Union’s refusal to sign a final agreement which reflected the provisions of the tentative agreement was improper and in violation of Section 209-a of the Civil Service Law. N.Y. State Nurses Association v. Onondaga County, Case U-4807.

     “Job security” is not a term and condition of employment and therefore not a mandatory subject of negotiations. Spencerport Transportation Authority v. PERB, Appellate Division, 4th Department, 1981.

The school board rather than an arbitrator makes ultimate decision regarding tenure

The school board rather than an arbitrator makes ultimate decision regarding tenure

Liverpool Faculty Association v. Liverpool Central School District, 52 N.Y.2d 1038

The New York State Court of Appeals has ruled that although the arbitrator had interpreted a collective bargaining agreement to limit the district superintendent’s power concerning tenure recommendations, the authority of the School Board to make the ultimate decision to grant or withhold tenure was not in any way impaired.

The decision of the arbitrator was not violative of public policy as set forth in Sections 2509, 2573, 3012 and 6212 of the Education Law according to the Court.

The award did not interfere with the decision-making powers of the School Board although it did require the District to retain the probationary teacher for an additional year so that her performance could be evaluated as provided in the contract.

The court noted that a different conclusion might result if the case involved a city having a population of 400,000 or more as the recommendations of a district superintendent regarding tenure in such a situation are binding on the School Board (Section 2573, Education Law).

A question of standing

A question of standing

Burke v. Bahou, 91 A.D.2d 705

When an employee brought suit contending that the determination of the State Civil Service Commission regarding a reclassification was arbitrary, the Appellate Division dismissed the action on the grounds that the Burke did not have standing to bring the suit because he was not the incumbent of the reclassified position.

The court indicated that only the employee occupying the reclassified position or the appointing authority concerned could challenge the determination, citing Section 120 of the Civil Service Law.

Provisional employee loses bid for permanent appointment

Provisional employee loses bid for permanent appointment

Haynes v. Chautauqua County, 55 NY2d 814

In Haynes the court held that reachable for appointment from the eligible list does not serve to give a provisional employee any right to selection for the permanent appointment.

Haynes had been removed from the position about a month following the certification of the list and had sued for reinstatement.

The decision indicated that Section 65.3 of the Civil Service Law permitted termination of a provisional within two months and contrasted the situation with that in Roulett v. Hempstead, 40 AD2d 611, where a provisional employee, eligible for permanent appointment, was retained in the absence of a three name eligible list in excess of the probationary period for the position.

The Court also noted that Haynes did not become a “probationary employee” by operation of law and could be removed without notice and hearing.

In contrast, the Court of Appeals reversed a lower court and held that a provisional employee does have a right to a permanent appointment. In LaSota v. Green, 53 NY2d 491 ruling that unlike Haynes, LaSota, a provisional for more than nine months and first on the eligible list, obtained a permanent appointment by operation of law when he was retained as a provisional after the establishment of the list. 

The distinction here was that in LaSota there was no mandatory list while in Haynes the list consisted of more than three candidates interested in the position. 

Accordingly, in LaSota the provisions of Civil Service Law Section 65.4 rather than 65.3, applied. 

Thus the LaSota determination, although extending Roulett [see 40 AD2d 611], is consistent the determination in Haynes. The Court took special note of the nine-month limitation on provisional appointments contained in Section 65.2 of the Civil Service Law.