Conducting student disciplinary proceedings consistent with fundamental notions of due process is an "unwavering obligation"

Conducting student disciplinary proceedings consistent with fundamental notions of due process is an "unwavering obligation"

2018 NY Slip Op 05104, Appellate Division, Fourth Department

A college [Respondent] had sanctioned a student for alleged violations of the Student Code of Conduct. In response to the student's challenge to the Respondent's action the Appellate Division "unanimously annulled" the determination "on the law" and directed the Respondent "to expunge all references to this matter from [the student's] school record."

The Respondent had determined that the student had "possessed weapons and engaged in harassment" and imposed 50 hours of community service, two years of disciplinary probation, and exclusion from on-campus housing as the penalty for the alleged misconduct.

The Appellate Division said it agreed with the student that "the record is devoid of any evidence, much less substantial evidence," to support the Respondent's determination, pointing out that Respondent's determination rests exclusively on a "seriously controverted" hearsay statement, and that does not, as a matter of law, constitute substantial evidence."

The court also declined the Respondent's "invitation to remit the matter for a new hearing in light of its failure to transcribe the disciplinary hearing," explaining "Annulment and expungement is the prescribed remedy for an administrative determination that is unsupported by substantial evidence."

It would be anomalous, said the Appellate Division, were the Respondent afforded "a new opportunity to establish [the student's] culpability based on its own procedural error in failing to transcribe the initial hearing."

The court also said it felt "compelled to express [its] dismay at [Respondent's] cavalier attitude toward [the student's] due process rights in this case, and we remind [Respondent] -- and all other colleges and universities, particularly state-affiliated institution -- of their unwavering obligation to conduct student disciplinary proceedings in a manner that comports with fundamental notions of due process for the accused, that renders determinations consistent with the facts, and that respects the presumption of innocence to which all students are entitled."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05104.htm

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Matter of Terry v County of Schoharie, 2018 NY Slip Op 04612, Appellate Division, Third Department

Petitioner in this CPLR Article 78 action alleged that Schoharie County [Schoharie] had abolished her position in violated Civil Service Law §80 as it was done in bad faith and, with respect her federal claims, violated her constitutional rights to due process, equal protection and political affiliation.

Schoharie removed the proceeding to Federal District Court and that court ultimately dismissed all of Plaintiff's federal claims on the merits. The District Court, however, declined to exercise supplemental jurisdiction over Plaintiff's remaining state law claims and remanded them back to Supreme Court. Supreme Court then granted Schoharie's motion for summary judgment dismissed Plaintiff's petition and Plaintiff appealed.

The Appellate Division, indicating that "A public employer may, in the absence of bad faith, collusion or fraud, abolish positions for the purposes of economy or efficiency",  noted that Schoharie had argued that Petitioner's position was abolished as part of a cost-saving measure due to fiscal restraints resulting from flooding caused by Hurricane Irene and was experiencing a loss of population as well as a shrinking tax base and had eliminated positions and restructured several County departments by consolidation or separation of functions. To rebut such proof the Appellate Division said that Petitioner was required to prove "that the abolition of [her] position was brought on by bad faith or in an effort to circumvent the Civil Service Law."

Addressing the issue of Schoharie's alleged bad faith, the Appellate Division said "hat issue was squarely addressed and decided by the District Court in its resolution of Petitioner's federal claims." In dismissing the federal claims, grounded upon the same allegations as those underlying the claimed Civil Service Law violations, the District Court "expressly held that the evidence submitted by [Schoharie] established that Petitioner's position was abolished as a cost-saving measure and that there was no evidence to support Petitioner's "self-serving testimony that [Schoharie] acted in bad faith" or in retaliation for Petitioner's change of political party enrollment.

Noting that the doctrine of collateral estoppel "precludes a party from relitigating an issue which has previously been decided against [him or] her in a proceeding in which [he or] she had a fair opportunity to fully litigate the point," regardless of whether the tribunals or causes of action are the same, the Appellate Division observed that the factual issue of bad faith "was raised, necessarily decided and material in the [District Court], and [Petitioner] had a full and fair opportunity to litigate the issue." Thus, said the court, Petitioner is barred by the principles of collateral estoppel from relitigating that issue in the course of her Article 78 action.

In the absence of bad faith, Schoharie's showing of an economic justification for the elimination of Petitioner's position could only be countered by proof that "no savings were accomplished or that someone was hired to replace [Petitioner]." Petitioner, however, did not dispute that the reorganization of her department and the concomitant elimination of her position, resulted in fiscal savings to the County or that Schoharie did not replace her.

Although Petitioner contended that many of her duties that Petitioner had been assumed by another Senior Planner and that Schoharie violated the prohibition in Civil Service Law §61(2) against assigning civil servants to out-of-title work by assigning supervisory responsibilities to that Senior Planner, the Appellate Division found that such work "either falls within the official duties set forth in the Senior Planner job classification or is a reasonable and logical outgrowth of those duties."

Accordingly, the Appellate Division concluded that Petitioner failed to raise an issue of fact in response to Schoharie's showing that its actions "were part of a good faith effort to reorganize a municipal department for the purposes of reducing costs and increasing efficiency," her petition was properly dismissed by Supreme Court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04612.htm

Employee exercising a right to obtain his or her own attorney to prosecute a grievance divests the employee organization's attorney of standing in the matter with respect to the grievant

Employee exercising a right to obtain his or her own attorney to prosecute a grievance divests the employee organization's attorney of standing in the matter with respect to the grievant

Matter of City of Syracuse (Lee), 2018 NY Slip Op 05077, Appellate Division, Fourth Department

This decision explores a number of unusual circumstances and events impacting on efforts to confirm an arbitration award, including:

1. a policy negotiated by the employer and the employee organization permitting an aggrieved member, in lieu of the employee organization, to submit certain issues to arbitration;

2. a Supreme Court's authority to, sua sponte, vacate its prior order and judgment confirming an arbitration award  and directing further arbitration; and

3. the lack of Supreme Court having "personal jurisdiction" of the grievant with respect to the employer's efforts to confirm an arbitration award in its favor.

A dispute between the City and the Syracuse Police Benevolent Association [SPBA]  concerning the General Municipal Law §207-c benefits received by Katherine Lee [Lee], a former City police officer who was injured in the line of duty. Although Lee was directed to return to work she refused and her §207-c benefits were discontinued. Lee  challenged the directive given to her pursuant to the "General Municipal Law §207-c Policy" [Policy] negotiated by the City and SPBA.

The Policy negotiated by the City and SPBA provided that an officer "shall not be required to return to work and shall continue to receive his or her prior benefits during the review process but, '[i]n the event that the Chief's determination is sustained, the Officer must reimburse the City for the value of benefits received during the pendancy [sic] of the review process.'" Lee demanded the City's action discontinuing her §207-c benefits be submitted to arbitration.*

Arbitrator Michael S. Lewandowski ruled that SPBA "failed to prove that the City acted arbitrarily [or] capriciously or that the City's determination was affected by an error of law when it determined to discontinue [Lee's] 207-c benefits." Subsequently a second arbitration was held concerning the interpretation of the   "value of benefits" subject to reimbursement to the City under the Policy, and Arbitrator Thomas N. Rinaldo ruled in the City's favor, holding that "wages are included in the 'value of benefits' for purposes of reimbursement under the Policy." In response to the City's request that Arbitrator Lewandowski to direct Lee to reimburse the City in the amount of $71,436.44, Lewandowski responded that the City was "free to seek reimbursement of wages . . . by whatever means it finds available to it." Lewandowski also declined the City's request to make a supplemental award providing for such reimbursement.

Although Supreme Court denied the City's motion to resettle the prior order and judgment, if concluded that it had inherent authority to vacate the order and judgment in the interest of justice, and it held the order and judgment in abeyance pending a decision by Lewandowski on the amount that the City is entitled to recoup from Lee.

The Appellate Division found that Supreme Court erred in denying Lee's cross motion to dismiss the City's petition as Lee had established that Supreme Court failed to acquire personal jurisdiction over her in the proceeding to confirm the arbitration award by Lewandowski because the City never properly served her.

Nor,  said the Appellate Division, did Supreme Court acquire personal jurisdiction over Lee by the unauthorized appearance of the Union's attorney "on behalf of Katherine Lee" in the course of the proceedings, explaining that "there is no evidence that Lee expressly or implicitly authorized the Union's attorney to represent her at any stage of the proceedings."

In concluding that the appearance of the Union's attorney did not confer jurisdiction over Lee, the Appellate Division acknowledges the general rule that "an employee has no individual right to enforce a contract between the employee's employer and union." 

However, noted the court, there are exceptions to that rule, and one of those exceptions applies in the circumstances herein inasmuch as "the contract provides otherwise." Specifically, the Policy explicitly provides Union members with the rights "to compel a review of the Chief's determination" and to have counsel or another representative "at any stage of the procedure."

In the words of the Appellate Division, "Lee availed herself of those rights from the outset of the arbitration and, to the extent that the Union's attorney acted on Lee's behalf during that part of the proceeding that was before arbitrator Rinaldo, that attorney was not the 'representative of . . . [Lee's] choosing' contemplated by the Policy. In any event, while the Union represented all of its members with respect to the proper interpretation of the 'value of benefits" to be reimbursed under the Policy, it was Lee alone who would be affected by, and thus entitled to litigate, the amount to be reimbursed to the City."

As to Supreme Court's "sua sponte vacating its prior order and judgment, which confirmed the arbitration award by Lewandowski, and directing further arbitration," the Appellate Division vacated "the second ordering paragraph of the order on appeal."

Although Supreme Court had authority to "vacate its own judgment for sufficient reason and in the interests of substantial justice," the Appellate Division observed that such authority "is not unlimited" and a court's "inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect." Further, noted the Appellate Division, in vacating the order and judgment the Supreme Court "exceeded the narrow bounds within which courts are authorized to alter [arbitration] awards" as set out in CPLR 7511 (b) or (c) for vacating or modifying an arbitration award", which provisions apply to the arbitrator's failure to award the City a specific dollar amount for the value of benefits received by Lee, "and the court had no power to disturb the award apart from the grounds set forth in those subdivisions."

The court, Justice Nemoyer dissenting, dismissed the City's Article 75 petition seeking confirmation of the arbitration award in favor of the City "for lack of personal jurisdiction" over the grievant.

* Under the Policy, "[a]ny Officer . . . shall have a right to a representative of his or her choosing, and at his or her own cost, at any stage of this procedure, and shall be given a reasonable opportunity to . . . obtain a representative and/or counsel." Lee exercised that right and retained an attorney to represent her in the arbitration conducted before arbitrator.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05077.htm

Relying on material not within the four corners of a settlement document to explain the "intent" of the settlement is misplaced

Relying on material not within the four corners of a settlement document to explain the "intent" of the settlement is misplaced

Woolfolk v New York City Board/Dept. of Educ., 2018 NY Slip Op 03765, Appellate Division, First Department

Supreme Court denied the employee's petition to set aside the employer's annual performance rating of the employee as "ineffective" upon the court's determinating that any right to initiate a legal or equitable claim concerning the rating was waived by employee's "Stipulation of Settlement" of disciplinary charges filed against the employee.

The employee had been served with disciplinary charges pursuant to Education Law §3020-a. Prior to the adjudication of those charges, the employee and the appointing authority entered into a "Post-Charge Stipulation of Settlement" to discontinue the disciplinary action. Subsequently the employee filed an administrative appeal challenging the "ineffective" annual performance rating received by the employee. The administrative appeal was rejected by the appointing authority and employee initiated an Article 78 proceeding challenging the appointing authority's rejection of the appeal.

Sustaining the Supreme Court's dismissal of the employee's Article 78 petition, the Appellate Division, citing W.W.W. Assoc. v Giancontieri, 77 NY2d 157, explained that it is well settled that "when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing."

In this instance, said the court, "the clear and express terms of the stipulation of settlement" indicated that the employee had waived any right to file a claim in court relating to any matter arising from or relating to her employment prior to December 2015, including this challenge to the individual's year-end performance rating of "ineffective" for the prior school year.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03765.htm

Negotiating religious days off

Negotiating religious days off

Binghamton CSD v Binghamton T.A., NYS Supreme Court [Not selected for publication in the Official Reports]

The collective bargaining agreement between the Binghamton Central School District and the Binghamton Teachers Association provided for paid leave for "days for religious observance in accordance with a list agreed to by the parties." The list the parties later agreed upon set out "approved leave days" for observing a number of Christian, Jewish and Eastern Orthodox religious holidays.

When the district denied a teacher's request for paid leave to observe Ash Wednesday, a day of religious observation included on "the list," the teachers association filed a contract grievance. The grievance could not be resolved by the parties and the teachers demanded that the grievance go to binding arbitration.

The district objected  and sought a court order staying the arbitration. The district justified its position on the grounds that time off for a religious observance was unconstitutional because it violated the "Establishment Clause." It argued that any arbitration award in favor of the teachers association would violate law and public policy and thus be unenforceable.

To support its position, the district cited a PERB ruling [CSEA and Eastchester UFSD, 29 PERB 3041]. In the Eastchester case, PERB concluded that negotiating days off for religious observances was not a mandatory subject of collective bargaining.

The Court decided that in this instance the scope of the agreement to arbitrate was not the issue. Rather, the question to be resolved was whether or not "the particular subject matter of the grievance is an authorized subject of negotiation."

Noting that PERB had not ruled that the subject of the dispute -- paid leave for absences for a religious observance -- was a "prohibited subject of negotiations," the Court concluded that "once both sides do bargain and agree on a permissive subject [of negotiations], their accord is as binding and enforceable as if the subject had been one of required negotiations."

The bottom line: the court declined to grant the district's motion to stay the arbitration. Why? Because, the court explained, the district and the association were free to negotiate and ultimately contract, to submit the subject dispute to arbitration.

What about the constitutional issue raised by the district? The court decided that negotiating paid absence to observe religious holidays did not offend the Establishment Clause because "the leave provision negotiated neither forces nor prohibits religious participation, nor does it favor one particular religion over another...."

Filing a noticed of claim may be required as condition precedent to initiating litigation against a public entity

Filing a noticed of claim may be required as condition precedent to initiating litigation against a public entity

Fotopoulos v Board of Fire Commr. of the Hicksville Fire Dist., 2018 NY Slip Op 03128, Appellate Division, Second Department

New York courts have distinguished between proceedings brought against public entities  "which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest." In Union Free School Dist. No. 6 of Towns of Islip and Smithtown v New York State Div. of Human Rights Appeal Board, 35 NY2d 371, 380, motion to reargue denied, 36 NY2d 807, it was held that an aggrieved individual must file a timely notice of claim "as to the former but not as to the latter."*

In this CPLR Article 78 action a volunteer firefighter [Petitioner] with the Hicksville Fire Department [Department] and a dispatcher employed by the Hicksville Fire District [District], working under the direction of the Board of Fire Commissioners of the Hicksville Fire District [Board] until he was allegedly forced to resign from both of these positions by coercion and duress.

When Petitioner subsequently attempted to withdraw his resignation, he was advised that the Department, the District, and the Board [collectively Respondents] refused to approve his request to withdraw the resignation.**

Petitioner initiated a CPLR Article 78 proceeding seeking a court order compelling Respondents to reinstate him to his former positions as a dispatcher and as a volunteer firefighter with all of the benefits of these employment including back pay. Respondents opposed the petition arguing, among other things, that the petition should be denied since Petitioner failed to file a notice of claim as required by General Municipal Law §50-e.

Supreme Court denied the petition and dismissed the proceeding, determining  that the Petitioner's failure to file a notice of claim precluded the court from considering the complaint. Petitioner appealed.

The Appellate Division explained that, as a general rule, "[t]he service of a notice of claim is a condition precedent to the maintenance of an action against a public corporation to recover damages for a tortious or wrongful act" but such a notice of claim requirement does not apply when a litigant seeks only equitable relief or commences a proceeding to vindicate a public interest. Further, said the court, a litigant who seeks "judicial enforcement of a legal right derived through enactment of positive law" is exempt from the notice of claim requirement.

Finding that in Petitioner's case both equitable relief and the recovery of damages in the form of back pay was demanded, the Appellate Division sustained the Supreme Court's ruling, holding that "the filing of a notice of claim within 90 days after [Petitioner's] claim arose was a condition precedent to the maintenance of this proceeding."

* It should be noted that in CSEA v Lakeland Central School District, 230 A.D.2d 703, the Appellate Division rejected Lakeland's theory that CSEA’s action for damages “for breach of a collective bargaining agreement” should be dismissed because CSEA had not complied with the “notice of claim” requirements set out in §3813 of the Education Law. The Court said that “the collective bargaining agreement entered into by the parties contained detailed grievance procedures and this constituted [Lakeland's] waiving compliance with that requirement.”

** Typically once the employee has delivered his or her resignation to the appointing authority or its designee, he or she may not withdraw or rescind the resignation without the approval of the appointing authority. For example, 4 NYCRR 5.3(c), which applies to employees of the State as an employer, provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” Many local civil service commissions and personnel officers have adopted a similar rule.

The Fotopoulos decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03128.htm

The doctrine of collateral estoppel bars the relitigation of a legal or factual issue that was previously decided

The doctrine of collateral estoppel bars the relitigation of a legal or factual issue that was previously decided

Washington v NYC Department of Education, USCA, 2nd Circuit, 17-3776-cv

In Grieve v Tamerin, 269 F.3d 149, the Circuit Court of Appeals said that the doctrine of collateral estoppel, also termed issue preclusion, bars re-litigation of a legal or factual issue that was previously decided where:

(1) the issues in both proceedings are identical,

(2) the issue in the prior proceeding was actually litigated and actually decided,

 (3) there was [a] full and fair opportunity to litigate in the prior proceeding, and

(4) the issue previously litigated was necessary to support a valid and final judgment on the merits.”

Further, the opinion continues, “New York courts will give administrative determinations preclusive effect if made in a quasijudicial capacity and with a full and fair opportunity to litigate the issue,” citing Burkybile v. Bd. of Educ. of Hastings-On-Hudson Union Free Sch. Dist., 411 F.3d 306.

In this action Janet Washington [Plaintiff] asserted that §3020-a hearings do not result in the sort of final judgment that can give rise to collateral estoppel in federal court. The Circuit Court of Appeals disagreed, explaining that "it is well-settled that a “[S]ection 3020-a hearing is an administrative adjudication that must be given preclusive effect” when the elements of collateral estoppel are satisfied."

The Circuit Court ruled that Plaintiff's §3020-a hearing satisfies the elements of collateral estoppel and has preclusive effect as the issue of alleged unlawful discrimination was actually litigated and decided, and the arguments raised in the §3020-a hearing were identical to those briefed for the discrimination claim on appeal. Further, said the court,  Plaintiff acknowledges that the hearing officer "ruled decisively and specifically on whether [Plaintiff] suffered disability discrimination after considering the arguments from each side," concluding that Plaintiff's “evidence of actual animus is weak” and that “just cause exists for the termination of [Plaintiff’s] employment”.

In the words of the court, "[t]he Section 3020-a hearing also afforded a full and fair opportunity to litigate the issue of discrimination. Plaintiff was permitted to request the production of material, call and cross-examine witnesses, and present relevant evidence...." The court acknowledged that Plaintiff had challenged certain of the arbitrator’s evidentiary decisions, but opined that "the proceeding is not rendered unfair or incomplete because some evidentiary rulings were unfavorable. "

Holding that the district court correctly concluded that the Plaintiff’s discrimination claims were collaterally estopped by the factual findings of her §3020-a hearing, the Circuit Court affirmed the lower court's ruling.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/112119e1-395f-4de2-89fe-3ac841261b89/1/doc/17-3776_so%20(2).pdf#page=3&zoom=auto,-146,394

Determining if an employee is eligible for accidental disability retirement benefits

Determining if an employee is eligible for accidental disability retirement benefits

Daquino v DiNapoli, 2018 NY Slip Op 03201, Appellate Division, Third Department

An employee [Petitioner] appealed the Hearing Officer denial of the Petitioner's application on the ground that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law, which decision was adopted by the State Comptroller.

In this action challenging the denial of Petitioner's application for accidental disability retirement benefits on the ground that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law, the Appellate Division said that Petitioner bore the burden of establishing her entitlement to accidental disability retirement benefits and Comptroller's determination will be upheld if supported by substantial evidence. Further, said the court, in order for an incident to constitute an accident within the meaning of the Retirement and Social Security Law, it must be "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact."

The State Comptroller had adopted the findings and conclusions of the Hearing Officer, who found that slipping on the water "was a sudden, fortuitous mischance and undoubtedly unexpected and out of the ordinary" but denied benefits based solely upon Petitioner's failure to demonstrate that the water she had slipped on was not readily observable.

Citing a recent decision by the Court of Appeals, Matter of Kelly v DiNapoli (30 NY3d 674, in which that court stated that "the requirement that a petitioner demonstrate that a condition was not readily observable in order to demonstrate an 'accident' is inconsistent with our prior case law," the Appellate Division annulled the Comptroller determination, explaining that "substantial evidence does not support the determination that the incident was not an accident."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03201.htm

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration

Matter of the Arbitration between Unit 8251, Local 842, CSEA v City of Troy, 169 AD2d 871

 Under the terms of a Taylor Law agreement, an employee against whom disciplinary charges had been filed was entitled to a three step disciplinary proceeding. The third step was arbitration.

In the Matter of the Arbitration between Unit 8251, Local 842, CSEA v City of Troy, the basic issue was the effect of an employee's pre-arbitration resignation on his or her right to demand arbitration.

The employee, Patrick Washington, was found guilty of four acts of misconduct. The hearing officer recommended that Washington be terminated. A few days later Washington submitted his resignation.* On the same day that Washington submitted the resignation the union filed a demand for arbitration. The City refused to submit the issue to arbitration on the grounds that Washington, having resigned from his position, was no longer an employee and thus was not covered by the collective bargaining agreement.

 The Union filed a legal action seeking a court order compelling the City to submit the matter to an arbitrator. The Union alleged that Washington had been coerced into submitting the resignation and thus it was null and void. Accordingly, it argued, Washington, not having lawfully resigned from his position, was still covered by the Taylor Law agreement.

 The Appellate Division rejected the Union's claims regarding coercion. The decision notes that a union official and a city official simultaneously spoke to Washington regarding the ramifications of his decision to resign and that "Washington persisted in this course of action and signed a formal, written notice of resignation, witnessed by both officials."

 Under the circumstances, the Appellate Division found that there was no evidence of coercion and that having resigned from his position, Washington was no longer covered by the Taylor Law agreement.

 As to the issue of a resignation being coerced from an employee or obtained under duress, the courts have concluded that where an appointing authority has the right, if not the duty, to take disciplinary action against an individual, "it was not duress to threaten to do what one had the legal right to do" [Rychlick v Coughlin, 63 NY2d 643].

 Rychlick, in the presence of a union representative, was told that unless he submitted his resignation formal disciplinary charges would be filed against him. Although allowed to confer with his union representative, he was told that he would not be given additional time to confer with an attorney. He was also then advised that unless he resigned, charges would be filed. Rychlick submitted his resignation.

 A few days later Rychlick asked to withdraw the resignation on the grounds that it had be "forced" from him. When his request was denied, Rychlick sued, claiming the resignation had been obtained under duress and thus was void.

 Ultimately the Court of Appeals upheld the agency's refusal to allow Rychlick to withdraw the resignation, indicating that the "threat to file formal charges ... if [Rychlick] did not resign does not constitute duress."

* N.B. The Rules of the State Civil Service Commission, which apply to State officers and employees, provide that "every resignation shall be in writing" [4 NYCRR 5.3]. Most local commissions and personnel officers have adopted a similar rule or regulation.

Determining if a county is obligated to provide for the defense and indemnification a county officer named as a defendant in a lawsuit against the County

Determining if a county is obligated to provide for the defense and indemnification a county officer named as a defendant in a lawsuit against the County 

Dunn v County of Niagara, 2018 NY Slip Op 03271, Appellate Division, Fourth Department

Danny P. Dunn, Sr. and Anita L. Dunn sued the County of Niagara [County] and Russell Jackman [Jackman], then a coroner employed by the County, in "action sounding in negligent infliction of emotional distress."

In his answer, Jackman contended that the County was obligated to defend and indemnify him pursuant to Public Officers Law §18. The County objected but Supreme Court determined that the County must provide Jackman with a defense by an attorney of his choosing and must reimburse him for his legal costs incurred to the date of the order. The County appealed and the Appellate Division ruled that Supreme Court should have denied Jackman's motion.

The Appellate Division explained the County's duty to defend an employee "turns on whether [the employee was] acting within the scope of [his or her] employment," and whether the obligation to defend the employee "was formally adopted by a local governing body." In order to establish its prima facie entitlement to judgment as a matter of law under Public Officers Law §18, the individual seeking indemnification must establish that §18 is applicable in his or her situation.

In this instance the court held that Supreme Court had erred in granting summary judgment to Jackman while still finding that there are issues of fact that bear on the applicability of Public Officers Law §18 to Jackman's claims.*

In any event, the Appellate Division said it agreed with the County that Supreme Court  should have applied County Law§501 in determining whether the County was obligated to defend Jackman.

Finding that the complaint against Jackman "created an inherent conflict between [Jackman] and the County over whether [Jackman's] actions occurred in the scope of his employment," the Appellate Division ruled that the County was absolved of its responsibility to defend Jackman. Accordingly, Jackman's retention of outside counsel was "at his own expense unless the provisions of [Public Officers Law §18] are applicable" in view of the fact that §501[2] of the County Lawprovides that:

 "Whenever the interests of the board of supervisors or the county are inconsistent with the interests of any officer paid his compensation from county funds, the county attorney shall represent the interests of the board of supervisors and the county. In such case the officer may employ an attorney-at-law at his own expense unless the provisions of section eighteen of the public officers law are applicable."

The existence of any such conflict, said the court, cannot be determined in the context of a defendant's motion for summary judgment.

* The Appellate Division noted that the claim that the County had adopted Public Officers Law §18 was raised for the first time in Jackman's reply papers and ruled that issue was not properly before it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03271.htm

Layoff of seasonal employees constituted a termination of employment for the purposes of Public Authorities Law §2629(2)(a)

Layoff of seasonal employees constituted a termination of employment for the purposes of Public Authorities Law §2629(2)(a)

Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO v Olympic Regional Dev. Auth., 2018 NY Slip Op 04998, Appellate Division, Third Department

The Civil Service Employees Association [CSEA] challenged the Olympic Regional Development Authority [ORDA] determination that certain its employees who had been laid off were no longer members of their previous collective bargaining unit upon their reinstatement. Supreme Court granted CSEA's application, in a combined proceeding pursuant to CPLR Article 78 and action for declaratory judgment, annulling ORDA's action. Supreme Court found that CSEA was "entitled to a declaration that the layoff of seasonal employees [did] not constitute a termination or cessation of their employment resulting in a vacancy for purposes of Public Authorities Law §2629(2)(a)" and granted CSEA's petition, annulling ORDA's determination. ORDA appealed the Supreme Court's decision.

In 2012, the management of the Belleayre Mountain Ski Center was transferred from the Department of Environmental Conservation [DEC] to ORDA, a public benefit corporation.* Pursuant to Public Authorities Law §2629(2)(a), employees then working at Belleayre Mountain, who had been DEC employees and members of CSEA's Operating Services Collective Bargaining Unit [OSU], became employees of ORDA.

In March 2016, ORDA laid off three seasonal employees at Belleayre Mountain who were in OSU. Upon rehiring these employees some two months later to the same positions each had previously held, ORDA determined that each would be placed in ORDA's collective bargaining unit rather than OSU. This resulted in the three seasonal employees experiencing a "significant adverse changes to their benefits" and CSEA brought this action against ORDA contending that ORDA's action was arbitrary and capricious and in violation of §2629(2)(a).

The Appellate Division noted that, as pertinent here, Public Authorities Law §2629(2)(a):

1. Provides that employees affected by the transfer "shall retain their respective civil service classifications, status, salary, wages and negotiating unit, if any...."; and

2.  §2629(2)(a) further provided that "once the employment of any transferred employee ... is terminated or otherwise ceases, by any means, any individual hired to fill such vacancy shall not be placed in the same negotiating unit of the former incumbent but rather shall be placed in [ORDA's] negotiating unit."

ORDA contend that §2629(2)(a) the unambiguous results in the employment of a seasonal employee "terminate[s] or otherwise ceases" when he or she is laid off. Accordingly, ORDA argued, "such an employee may not return to his or her former negotiating unit in the event that he or she is subsequently rehired."

Noting that ORDA's determination was made without a hearing, the Appellate Division said that its review is limited to determining whether ORDA decision was "'arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion." Further, said the court, "We accord no deference to ORDA's statutory interpretation," as the questions raised on appeal depend only upon the "accurate apprehension of legislative intent."

This appeal, said the Appellate Division turns on the meaning of the terms "terminated" and "ceases" within the context of §2629(2)(a) and as neither word is defined in the Public Authorities Law and both are words "of ordinary import," the court said it would interpret them in a manner consistent with "their usual and commonly understood meaning." In the words of the Appellate Division, "terminate" is defined as "to bring to an end," "to discontinue the employment of" or "to form the conclusion of," citing the "Merriam-Webster Online Dictionary."

Rejecting CSEA's contention that a layoff is inconsistent with these definitions and merely constitutes a temporary interruption in a career, the Appellate Division explained that "in light of the express statutory provision that an employee whose employment 'is terminated or otherwise ceases, by any mean'" may not return to his or her prior collective bargaining unit upon subsequent rehire" and interpreting §2629(2)(a) as urged by CSEA "would render the phrase 'by any means' superfluous."

The court also rejected CSEA claim that §2629(2)(a) applies only to new employees, opining that the statute states that it is applicable to "any individual" and makes no distinction between employees who are new hires and employees who may have previously worked at Belleayre Mountain.

On one last point, CSEA's contention that the court should adopt its interpretation of §2629 on the basis that it is a remedial statute, the Appellate Division said that "[E]ven a remedial statute must be given a meaning consistent with the words chosen by the Legislature," and courts must "give effect not only to the remedy, but also to the words that delimit the remedy," commenting that CSEA's "interpretation of §2629 could result in the unintended adverse effect of discouraging the rehiring of seasonal employees after layoffs."

Finding that the plain language of §2629(2)(a) barred ORDA from permitting seasonal employees who were laid off and subsequently rehired to remain in OSU, the Appellate Division ruled that CSEA's "petition/complaint should have been dismissed."

* §45 of the Civil Service Law addresses the status of the employees of a private institution or enterprise upon its acquisition by governmental entity for the purpose of operating the private institution or enterprise as a public function.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04998.htm

US Supreme Court holds it has jurisdiction to review decisions of the Court of Appeals for the Armed Forces of the United States

US Supreme Court holds it has jurisdiction to review decisions of the Court of Appeals for the Armed Forces of the United States

Ortiz v. United States, Docket: 16-1423, Government & Administrative Law

In addition to "Company Punishment,"* a non-judicial proceeding, the United States “court-martial system” provides for an initial judicial determination of the guilt or innocence of military personnel charged with one or more violations of the federal Code of Military Justice. If the accused is found guilty, the court levies the punishment to be imposed.**

There are four appellate courts: the Court of Criminal Appeals (CCA) for, respectively, the Army, Navy-Marine Corps, Air Force, and the Coast Guard. CCA decisions may be subject to review by the Court of Appeals for the Armed Forces (CAAF). CAAF is a “court of record” composed of five civilian judges.

Keanu Ortiz, an Airman First Class, was convicted by a court-martial of possessing and distributing child pornography. The penalty imposed, two years’ imprisonment and a dishonorable discharge. Ortiz asked the CAAF to review the matter, challenging the qualification of one of its members, Colonel Martin Mitchell, to serve on the CCA panel because he had been appointed to the Court of Military Commission Review (CMCR) by the Secretary of Defense. Further, to moot a possible constitutional problem with the assignment, the President (with the Senate’s advice and consent) also appointed the Colonel Mitchell to the CMCR pursuant to §950f(b)(3).

As Judge Mitchell participated in Ortiz’s CCA appeal, Ortiz claimed that Judge Mitchell’s CMCR appointment barred his continued CCA service under both a statute and the Constitution, contending that the appointment violated §973(b)(2)(A), which provides that unless otherwise authorized by law,” an active-duty military officer “may not hold, or exercise the functions of,” certain “civil office[s]” in the federal government. Ortiz also argued that the Appointments Clause prohibits simultaneous service on the CMCR and the CCA.

The CAAF denied Ortiz's appeal.

Ultimately the Supreme Court said that it had jurisdiction to review the CAAF’s decisions, explaining that "The judicial character and constitutional pedigree of the court-martial system enable this Court, in exercising appellate jurisdiction, to review the decisions of the court sitting at its apex."

The Supreme Court's decision notes that Professor Aditya Bamzai had filed a brief amicus curiae with the Supreme Court contending that cases decided by the CAAF do not fall within Article III’s grant of appellate jurisdiction to the Supreme Court. The Supreme Court, citing Marbury v. Madison, 1 Cranch 137, said that then Chief Justice Marshall had explained that “the essential criterion of appellate jurisdiction” is “that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.”

Here, said the Supreme Court, Ortiz’s petition asks the Supreme Court to “revise and correct” the latest decision in a “cause” that began in and progressed through military justice “proceedings.”

Unless, opined the court, Chief Justice Marshall’s test implicitly exempts cases instituted in a military court, the case is now appellate. But, the court concluded, "There is no reason to make that distinction. The military justice system’s essential character is judicial. Military courts decide cases in strict accordance with a body of federal law and afford virtually the same procedural protections to service members as those given in a civilian criminal proceeding. The judgments a military tribunal renders “rest on the same basis, and are surrounded by the same considerations[, as] give conclusiveness to the judgments of other legal tribunals.”

Justice Kagan delivered the opinion of the court, in which Justices Roberts,  C. J., and Justices Kennedy, Thomas, Ginsburg, Breyer and Sotomayor joined. Justice Thomas filed a concurring opinion and Justice Alito filed a dissenting opinion, in which Justice Gorsuch joined., holding that the Court has appellate jurisdiction to review the CAAF’s decisions. "In exercising that jurisdiction, [the majority said] that Judge Mitchell’s simultaneous service on the CCA and the CMCR violated neither §973(b)(2)(A)’s office-holding ban nor the Constitution’s Appointments Clause" and affirmed the judgment below."

* 10 U.S. Code Chapter 47 - UNIFORM CODE OF MILITARY JUSTICE, §815 - Art. 15. Commanding officer’s non-judicial punishment.

** See, generally, 10 U.S. Code Chapter 47, §816 - Art. 16. Courts-martial classified. See, also, New York State Military Law, Article 7 - Code of Military Justice.

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/17pdf/16-1423_bq7c.pdf