Substituting a "Rule of One" for the "Rule of Three" when making appointments from a promotion list

Although in People v Mosher, 163 NY 32, the Court of Appeals held that a civil service commission cannot mandate a rule of one with respect to appointing an individual from an examination eligible list to a position in the competitive class, the appointing authority itself may elect to be bound by such a rule. Such a decision has not been viewed as offending public policy because the appointing authority has merely truncated its ability to exercise its discretion with respect to selecting candidates for appointment from the eligible list.

When an arbitrator require the appointing authority to promote the highest-scoring bargaining unit member on a civil service eligible list based on a finding that a rule of one was mandated under the terms of the parties' collective bargaining agreement [CBA], the appointing authority brought an action pursuant to CPLR Article 75 seeking a court order vacating the award. The appointing authority contended that such an award violated public policy in that restricted the statutory discretion vested in the appointing authority pursuant to Civil Service Law §61 "to select one of the three highest-ranked candidates on an eligible list."

Ultimately the Court of Appeals* concluded that there was no strong public policy prohibiting an appointing authority from agreeing include a provision  in a CBA as the result of collective bargaining pursuant to Article 14 of the Civil Service Law, the so-called Taylor Law, requiring the appointing authority select the employee whose name appears first on the eligible list certified to it for that purpose.

The court explained that §204 of the Civil Service Law "empowers and, in fact, requires a public employer to negotiate collectively with employee organizations and enter into written agreements governing the terms and conditions of employment." Observing that "the public policy exception to the arbitrability of public sector labor disputes is narrow," the Court of Appeals sustained the arbitration award, observing that the promotional practices of a public employer constitute a term or condition of employment that may be determined through collective bargaining under the Taylor Law.

In contrast, however, determining the seniority rights in some situations are statutory such as determining an employee's seniority for the purposes of layoff based on the employee's "original date of permanent appointment" in the event of a layoff.** §64.2 of the Civil Service Law provides that an individual's original date of permanent appointment is the effective date of the individual's initial, and uninterrupted, permanent appointment from the eligible list, to be distinguished from the date the employee attained "tenure" in the position upon the successful completion of the employee's required probationary period at some later date.

For example, in City of Plattsburgh v Local 788, 108 AD2d 1045, the Appellate Division the court considered a Taylor Law contract provision which provided that the "date of hire" was to be used to determine an employee's seniority rather than the individual's "original date of permanent appointment.

Under the terms of the Local 788 CBA Employee A had greater seniority for layoff purposes in consideration of the fact that he had been provisionally appointed to his position before Employee B was provisionally appointed to his. But §§80 and 80-a of the Civil Service Law provide that the date of an employee's most recent, uninterrupted permanent appointment determines his or her seniority for the purposes of layoff and as Employee B had been permanently appointed to his position prior to Employee A being permanently appointed to his, Employee B would have greater seniority for the purpose of layoff determinations than Employee A pursuant to law.

When Plattsburgh laid off Employee A rather than Employee B notwithstanding the fact that Employee A had been employed by the City for a longer period than Employee B because Employee B been permanently appointed to the title before the effective date of Employee A's permanent appointment to the title, the Union grieved. Ultimately the union demanded that the issue be submitted to arbitration, contending that under the seniority provision in the CBA B rather than A should have been laid off.

The City, arguing that Civil Service Law §80 controlled and thus A, and not B, had to be laid off first, obtained a court order prohibiting arbitration of the grievance. 

The Appellate Division explained that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away, citing County of Chautauqua v Civil Service Employees Ass'n, 8 N.Y.3d 513, in which the Court of Appeals held that once an informed decision as to which positions are to be abolished is made, Civil Service Law "§80(1) obligates the employer to respect the seniority rights of its employees."

Similarly, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff.

* Matter of the Arbitration between Professional, Clerical, Technical Employees Association and Buffalo Board of Education, 90 N.Y.2d 364, posted on the Internet at https://www.leagle.com/decision/199745490ny2d3641423

** §80 of the Civil Service Law which, in addition to other requirements, provides that layoffs of employees in the competitive class "shall be made in the inverseorder of original appointment on a permanent basis in the classified service in the service of the  governmentaljurisdiction in which such  abolition or reduction of positions occurs...." §80-a of the Civil Service Law sets out similar provisions with respect to the layoff of employees in the noncompetitive class of the State as the employer.

Challenging an arbitration decision and award

The collective bargaining agreement [CBA] at issue provided that in selecting teachers to be transferred within the school district the "[l]ength of teaching experience in the school system" would the controlling factor "where all other factors are substantially equal."

The employee organization [Association] representing the School District's [District] teachers filed grievances on behalf of two of its members in the collective bargaining unit who were passed over for transfers to a particular school in the District in favor of unit members with less seniority. The grievances ultimately were submitted to arbitration and the arbitrator issued opinions finding that the District had not violated the CBA and dismissed the grievances.

The Association subsequently filed a timely CPLR Article 75 petition challenging the arbitrator's decision.  Supreme Court dismissed the petition and the Association again appealed.

The Appellate Division affirmed the Supreme Court's ruling, which in effect confirmed the arbitration award, explaining that the arbitrator here determined that School District did not violate the seniority provision of the CBA with respect to the grievants because "all other factors" were not "substantially equal."

Rejecting the Association's contention that the arbitrator exceeded his power in rendering the award, the Appellate Division, quoting Matter of Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, explained that "It is well settled that an arbitrator exceeds his or her power within the meaning of CPLR 7511(b)(1)(iii) where, inter alia,* the arbitration award "is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Further, said the court, "An arbitrator's interpretation may even disregard the apparent, or even the plain, meaning of the words of the contract before him [or her] and still be impervious to challenge in the courts." 

Citing Finger Lakes Region Police Officers Local 195 of Council 82, AFSCME, AFL-CIO [City of Auburn], 103 AD3d 1237, the Appellate Division said that although "a different construction could have been accorded to the subject provision of the [CBA],  ...  it cannot be stated that the arbitrator gave a completely irrational construction to the provision in dispute and, in effect, exceeded [his] authority by making a new contract for the parties."

The Appellate Division also rejected the Association's contention that the arbitrator's award was irrational. An award is irrational, said the court, if there is no proof whatever to justify the award. Otherwise "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached," opining that in this instance "there is a colorable justification for the arbitrator's determination."

The Appellate Division then affirmed Supreme Court's order denying the Association's petition seeking to vacate the arbitration award and granting School District's request to confirm the arbitration award.

* Latin for "among other things." This phrase is frequently found in legal writings to indicate the reference is but "one example" of many possible examples that could be cited.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04647.htm

Evaluation of conflicting medical evidence by an appointing authority

A deputy sheriff [Deputy] was injured in a work-related accident and was receiving benefits pursuant to §207-c of the General Municipal Law.* Following the receipt of a report from an orthopedic surgeon indicating that Deputy was capable of returning to work if assigned to work a "light duty position, Deputy was notified by the Sheriff's Department [Department] that [1] his §207-c benefits would be discontinued and [2] he would be place in a light-duty assignment with the Department. Deputy declined the light duty assignment and, as provided for in the relevant collective bargaining agreement, requested a hearing concerning the Department's decision.** 

A hearing was held and the Hearing Officer determined that Deputy's benefits [1] had been improperly terminated and [2] recommended that Deputy's benefits be reinstated retroactively.

The Department rejected the Hearing Officer's determination and recommendation without providing any explanation for its decision and Deputy commenced an Article 78 CPLR proceeding seeking, among other things, a court order annulling the Department's determination.

Citing Matter of Alverson v Albany County, 173 AD3d 1415, the Appellate Division said  that the Department failure to make any findings or otherwise specify any basis for its determinations "deprived the court of the ability to conduct meaningful judicial review." According, the court annulled the Department's determination and remitted the matter to it "to address the procedural issues and develop appropriate factual findings."

Upon remittal, the Department considered the conflicting medical evidence in the record concerning whether Deputy was capable or incapable of performing light-duty work.

Deputy's primary care physician had testified that Deputy's work-related injuries "rendered him wholly incapable of returning to work in any capacity" while a physician assistant working under the primary care physician supervision testified that Deputy would be capable of performing the specific tasks that he would be assigned as part of his light-duty assignment only if he was permitted "to take his prescribed pain medications."

In contrast, the testimony and independent medical examination report of the Department's medical expert supported the conclusion that Deputy was capable of returning to work in a modified or light-duty capacity.

The Department, after evaluating the testimony of the medical experts, found that Deputy was capable of performing light-duty work and that his §207-c benefits had been properly terminated in accordance with the terms and conditions of collective bargaining agreement. In so doing the Department credited a "work abilities checklist" completed by an orthopedic surgeon and the medical opinion given by its medical expert over the medical evidence presented by Deputy's medical experts.

Based upon that credibility determination, Department found that Deputy was capable of returning to work in a light-duty capacity and Deputy next filed the instant CPLR Article 78 petition challenging the Department's ultimate decision.

The Appellate Division dismissed Deputy's petition, concluding that [1] the Department's resolution of the conflicting medical evidence was rational, fact-based and  supported by the record, and [2] substantial evidence supported the Department's determination to terminate Deputy's §207-c benefits "notwithstanding the existence of evidence that could support a contrary conclusion."

The court, Judge Colangelo, dissenting,*** explained that a "Judicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record," noting that "Substantial evidence consists of 'such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.'"

In the words of the Appellate Division, "[W]here the medical evidence [is] in conflict, it [is] for the administrative agency to choose between the conflicting opinions, and the courts are not free to reject the choice made by the administrative agency where room for choice exists."

* General Municipal Law §207-c provides for the payment of salary, wages, medical and hospital expenses of law enforcement personnel having injuries or illness incurred in the performance of duty.

** The "stipulated issue" to be addressed at the hearing was whether Deputy's §207-c benefits had been properly terminated.

*** Justice Colangelo opined that "As the majority notes, [Deputy] adduced credible medical evidence — namely, the testimony of his primary care physician and a registered physician assistant — in support of his contention that he was incapable of even light-duty work at the time that [the Department] terminated his General Municipal Law §207-c benefits" and in Judge Colangelo's view the Department's determination was not supported by substantial evidence and he would annul it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04621.htm

State agency audits issued by New York State Comptroller Thomas P. DiNapoli

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending August 20, 2020.

Click on the text highlighted in color to access the full report.

Office of Children and Family Services (OCFS): Oversight of Runaway and Homeless Youth (2019-S-47) OCFS has generally established controls but is not conducting program and fire safety inspections for certified runaway and homeless youth programs and facilities. Auditors found OCFS did not always conduct inspections within established time frames as 57 of 186 program inspections (31 percent) and 23 of 184 fire safety inspections (13 percent) were late. Additionally, they found various safety conditions needed to be improved. These included missing smoke detectors, missing outlet covers, overloaded power strips, and water damage to ceilings with possible mold. 

Office of General Services: Summit Security Services Inc. (2019-BSE3-001) OGS paid Summit more than $867,000 for 40 individuals provided by Summit’s subcontractor, Bestworth, who did not meet the contract qualifications for security guards. Bestworth’s president acknowledged none of the 40 employees who provided security guard services at the Adam Clayton Powell Jr. State Office Building took a drug test. Furthermore, 27 of these individuals lacked other necessary qualifications, including the required New York State Department of State Security Guard registration. 

Department of Civil Service: New York State Health Insurance Program: CVS Health – Accuracy of Drug Rebate Revenue Remitted to the Department of Civil Service (2019-S-51) The Department of Civil Service contracted with CVS Health to administer the Empire Plan’s prescription drug program for the period Jan. 1, 2014 through Dec. 31, 2018. CVS Health was required to negotiate agreements with drug manufacturers for rebates, discounts, and other consideration and remit the rebate revenue to Civil Service. Auditors reviewed discrepancies between the drug rebates that CVS Health invoiced versus collected from drug manufacturers and found CVS Health did not always collect and remit all rebate revenue to Civil Service. As a result, Civil Service is due $453,029 in rebates. 

Department of Civil Service: New York State Health Insurance Program – Payments by Empire BlueCross for Hospital Services for Ineligible Members (2019-S-32) The audit identified 3,177 claims totaling $18.2 million that were paid for hospital services provided during periods when members were not eligible. The claims were paid due to various reasons, including retroactive disenrollments. For retroactive disenrollments, it took an average of nearly 400 days to cancel members’ coverage. Empire recovered $11.5 million and $2.1 million was beyond recoverability time frames, leaving $4.6 million to be recovered. 

Empire State Development (ESD): Oversight of Select High-Technology Projects (2017-S-60) ESD has provided millions of dollars to private companies in high-tech sectors with the goal of creating jobs and increasing private investment. While ESD has effective practices for monitoring specific programs, it has not adequately monitored other high-tech projects to ensure that taxpayer money is effectively spent and is producing the intended results. 

Homeless Housing and Assistance Corp.: Homeless Housing and Assistance Program (HHAP) – Project Selection and Maintenance (2020-F-14) (Follow-up) An audit issued in January 2019 found that, of the 51 projects that were awarded funding by HHAP during the three-year period ending March 31, 2016, all but one were operational or in the pre-construction or construction phase within two to four years of being awarded funding. Auditors also identified several areas for improvement. In a follow-up, auditors found HHAP has made progress in addressing the problems identified in the initial audit report; however, additional improvements are needed. 

Metropolitan Transportation Authority – New York City Transit (NYCT) – Signal Maintenance, Inspections, and Testing (2019-F-58) (Follow-up) An audit issued in October 2017 found NYCT did not always perform required tests of its signal equipment within required intervals and supervisors were often late in inspecting equipment. NYCT also did not have an inventory system to account for the equipment it maintains. In a follow-up, auditors found NYCT has made progress in addressing the issues identified. Of the 18 prior recommendations, three were implemented, 10 were partially implemented and five were not addressed. 

Office for People With Developmental Disabilities (OPWDD): Controls Over Transportation Services and Transportation-Related Expenses (2019-S-38) Auditors reviewing upstate New York OPWDD transportation services and related expenses found it could improve accountability over transportation expenses and services and doesn’t have controls in place to educate or improve driving skills for employees with frequent driver license interruptions or serious violations (e.g., speeding, disobeying traffic devices, driving while intoxicated). OPWDD could also improve controls to ensure vehicle recalls are repaired in a timely manner. Auditors found that 219 vehicles had 235 unresolved (open) recall notices. Most (201) had been open for over nine months. 

Office for People With Developmental Disabilities (OPWDD): Oversight of Passenger Safety (Follow-Up) (2020-F-1) An audit released in October 2018 found that OPWDD did not analyze traffic violations to identify whether employees in the New York City region needed training or counseling, or if they should be reassigned. The audit also found that four regional Developmental Disabilities Services Offices were not properly identifying drivers whose licenses had been suspended. In addition, repairs related to manufacturer recalls were not being performed in a timely manner or at all. In a follow-up, auditors found OPWDD has made limited progress in addressing the problems identified in the initial audit. 

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The anatomy of a student disciplinary hearing conducted by a public institution of higher education

Following the student's [Student] administrative disciplinary hearing and the Students administrative appeal of the hearing decision, a unit of State University of New York [SUNY] suspended Student  for three years and noted Student's college transcript accordingly. Student initiated a CPLR Article 78 proceeding seeking a court order annulling SUNY's actions.

Among the elements of SUNY's administrative disciplinary procedures challenged by Student, and considered by the Appellate Division, were the following:

1. Due Process: 

Citing Matter of Sharma v State Univ. of N.Y. at Buffalo, 170 AD3d 1565, among other decisions., the Appellate Division concluded that SUNYsubstantially adhered to its procedural rules with respect to the administrative disciplinary proceedings involving Student and that the alleged violations of those rules did not deny Student"the full panoply of due process guarantees to which he was entitled or render ... the finding of responsibility or the sanction imposed arbitrary or capricious".

2. Discovery: 

The Appellate Division rejected Student's contention that SUNY denied him due process with respect to his judicial appeal, explaining that "[i]n a disciplinary proceeding at a public institution of higher education, due process entitles a student accused of misconduct to a statement detailing the factual findings and the evidence relied upon by  [SUNY's] decision-maker in reaching the determination of [Student's] guilt ... and here the record reflects that [Student] was provided with the documents that were relied on by [SUNY]" in making such determinations.

3. Assistance of counsel: 

The court dismissed Student's claim that he was denied the assistance of counsel at his hearing, noting Student was, as authorized by SUNY's administrative hearing procedures, assisted by an attorney advisor throughout the disciplinary process, including such assistance at the hearings.* 

4. Prosecuting an effective appeal: 

Notwithstanding Student's contention to the contrary, the Appellate Division opined that SUNY's written determinations did not violate Student's right to due process as they contained sufficient detail "to permit [Student] to effectively challenge the determination in administrative appeals and in the courts and to ensure that the decision was based on evidence in the record," nor did the record support Student's claim that the determination with respect to his administrative appeal was based on matters outside of the record.

Finding that SUNY's determination was supported by substantial evidence, the Appellate Division said it perceived no basis to disturb SUNY's decision. 

* The Appellate Division also rejected Student's claim that he was denied due process as the result of SUNY's alleged failure "to call live witnesses or to accept questions to be asked of such live witnesses."

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_04628.htm

Defending and indemnifying employees of the City of New York being sued in a civil action

§50-k(3) New York State's General Municipal Law provides that New York City must, if certain conditions are satisfied, defend and, if necessary, indemnify, an employee being sued in a civil action related to the employee's conduct performed in compliance with the rules and regulations of the employee’s agency at the time the plaintiff was injured, so long as the injury to the plaintiff did not result from the employee’s intentional wrongdoing or recklessness.*

Two New York City police officers [jointly Defendants] had arrested an individual [Accused] and charged him with disorderly conduct, harassment, obstruction of governmental administration, and resisting arrest. After obtaining video footage of the incident, prosecutors dismissed all charges.

The Accused then filed a lawsuit pursuant to 42 U.S.C. §1983 alleging false arrest, malicious prosecution, the use of excessive force, denial of the right to a fair trial, a failure of a police officer to intervene in the course of the incident, and First Amendment violations, as well as malicious prosecution in violation of New York state law, against the City of New York [City], the Defendants, and another New York City police officer. A federal district court jury found for the Accused and Defendants appealed.

One of issues raised by Defendants in the district court was the City’s decision not to provide for their defense and indemnification under color of General Municipal Law §50-k(3). The Circuit Court held that "the district court did not err" in denying Defendants’ request for an evidentiary hearing" addressing the City's decision not to provide for Defendants' defense and indemnification.

The Circuit Court held that whether the employee's act or omission was in violation of an agency rule, or was within the employee’s scope of employment was a factual determination to be made in the first instance by the City's Corporation Counsel, whose determinations may be set aside only if they are not supported by the evidence or are in some other sense ‘arbitrary and capricious.” Further, the Circuit Court noted that the City is not required to indemnify a defendant for “intentional wrongdoing or recklessness.

The Circuit Court opined that the fact that Defendants may have certain employment rights meriting a hearing prior to termination** "says nothing of their right to indemnification after trial." The Circuit Court's decision also observed that "Defendants had a full and fair opportunity to present their defense in court, yet failed to convincingly do so." 

In addition, said the court, in any event, the City "maintains discretion to indemnify officers" and, in consideration of the substantial factual support for the City’s decision, "the district court did not err in denying Defendants’ request for an evidentiary hearing. In the words of the Circuit Court, "The City’s assessment of Defendants’ wrongdoing or recklessness was supported by the findings of the City's Civilian Complaint Review Board, the videotape of the incident, and the federal district court's jury’s findings of liability and awarding of punitive damages."

* See, also, Public Officers Law §17 [defense and indemnification of State officers and employees] and Public Officers Law §18 [defense and indemnification of officers and employees of public entities]. Public Officers Law §19.2(a) addresses the duty of the State, as the employer, to pay reasonable attorneys' fees incurred as the result of a State officer or employee appearing before a Grand Jury or in a criminal proceeding arising out of any act which occurred while such individual was acting within the scope of  his public employment or duties.

** Subdivision 5 of §50-k(3) provides that "[i]n the event that the act or omission upon which the court proceeding against the employee is based was or is also the basis of a disciplinary proceeding by the employee's agency against the employee, representation by the corporation counsel and indemnification by the city may be withheld (a) until such disciplinary proceeding has been resolved and (b) unless the resolution of the disciplinary proceeding exonerated the employee as to such act or omission."

The decision is posted on the Internet at:

https://www.ca2.uscourts.gov/decisions/isysquery/59c1a0cd-0da0-4f63-a556-2e35a1e5f76c/1/doc/19-769_so.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/59c1a0cd-0da0-4f63-a556-2e35a1e5f76c/1/hilite/

Denying an individual an "on-street parking permit" did not violate the individual's equal protection rights under the circumstances

In an action to recover damages for alleged civil rights violations pursuant to 42 USC §1983, Plaintiff appealed Supreme Court's granting the Town's cross motion for summary judgment dismissing Plaintiff's complaint. Plaintiff had contended that Plaintiff's right to equal protection was violated because Plaintiff was denied an "on-street parking permit" for a specified location in the Town on the ground that Plaintiff was not a resident at the location involved.

The Appellate Division said that the Town had established its prima facie entitlement to judgment as a matter of law and that Plaintiff failed to raise a triable issue of fact in opposition.

With respect to Plaintiff's cause of action for recovery under 42 USC §1983 on equal protection grounds, the Appellate Division explained that recovery under 42 USC §1983 is triggered where a defendant has denied the plaintiff a constitutional or federal statutory right, and that such denial was effected under color of state law. Here, said the court, Plaintiff "is not a member of a suspect class and no fundamental right is implicated. Thus the challenged action need only be rationally related to a legitimate governmental purpose."

Further, opined the Appellate Division, a local law limiting the issuance of on-street parking permits to residents of that street is rationally related to the legitimate governmental purpose of alleviating an on-street parking shortage on that street.

Citing Village of Willowbrook v Olech, 528 US 562, the Appellate Division also rejected Plaintiff's claim that Plaintiff is a "class of one" for purposes of prosecuting an equal protection claim, explaining there has been no showing that Plaintiff had been intentionally treated differently from others similarly situated and that there was no rational basis for the difference in treatment.

The court also noted that the individually named Town defendants "are entitled to qualified immunity, as they are government officials performing discretionary functions, and their conduct did not violate any clearly established statutory or constitutional rights of which a reasonable person would have known."

Finally, the Appellate Division said it agreed with the Supreme Court's determination directing dismissal of Plaintiff's cause of action alleging retaliation in connection with the issuance of a parking ticket. In the words of the court: "While retaliation claims alleging an adverse employment action because of a complaint of discrimination are actionable under 42 USC §1983 [Plaintiff] has no employment relationship with the Town and the statute does not apply in this context.

The bottom line: the Appellate Division agreed with Supreme Court's decisions [1] denying Plaintiff's motion for summary judgment on Plaintiff's complaint, and [2] granting the Town's cross motion for summary judgment dismissing Plaintiff's complaint.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04503.htm

Absent a statutory basis for a public referendum there is no clear legal right to a court's granting an order in the nature of mandamus to compel the holding of a public referendum

Qualified electors of a Town [Plaintiffs] filed a proceeding pursuant to CPLR Article 78  seeking a court order in the nature of mandamus compelling the Town [Respondents] to conduct a special election providing for certain term limits for the offices of Town Supervisor and members of the Town Board. Supreme Court dismissed Plaintiff's the petition for failure to state a cause of action and, in effect, denied the petition and dismissed the proceeding. Plaintiff appealed the Supreme Court's ruling.

The genesis of this Article 78 action was the Plaintiffs' filing a petition under color of Town Law §81(4) asking the Town to hold a referendum on a proposition to limit the terms of the Town Supervisor and members of the Town Board to "no more than two consecutive terms." The Town Board did not reject the petition filed by the Plaintiffs but took no further action on it on the advice of the Town Attorney. The Town Attorney had concluded that Town Law §81 did not permit a referendum concerning term limits.

Finding that there was no statutory basis for a public referendum on this particular issue, the Appellate Division ruled that Plaintiffs' petition failed to adequately allege a clear legal right to the relief Plaintiffs sought and sustained the Supreme Court's granting the Respondents' motion to dismiss Plaintiffs' petition for failure to state a cause of action

The Appellate Division explained that the extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and then only where there exists a clear legal right to the relief sought, citing Legal Aid Society of Sullivan County v Scheinman, 53 NY2d 12. Further, said the court, a town may not submit a proposition to the electorate "in the absence of express statutory authority permitting it to do so."

Noting that Town Law §81(1)(d) specifically provides that: "The town board may upon its own motion and shall upon a petition ... cause to be submitted at a special or biennial town election, a proposition ... [t]o vote upon or determine any question, proposition or resolution which may lawfully be submitted, pursuant to this chapter or any general or special law," the court opined that such language "only operates if submission of the proposition to the electorate has been specifically validated by some other law."

As Plaintiffs failed to set forth separate statutory authority for a public referendum on this particular issue, the Appellate Division held that Plaintiffs' petition failed to adequately allege a clear legal right to the relief sought, a court order in the nature of mandamus compelling the Respondents to conduct such a special election, sustained Supreme Court's decision granting the Respondents' motion to dismiss the Plaintiffs' petition for failure to state a cause of action.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04476.htm

A disciplinary penalty should not be set aside by a court where it is not irrational and does not shock the conscience

The appointing authority [School District] filed disciplinary charges alleging various instances of misconduct against a tenured teacher [Plaintiff] pursuant to Education Law §3020-a. The hearing officer sustained certain specifications of misconduct, finding that the Plaintiff was guilty of "neglect of duty, conduct unbecoming of a professional, and insubordination and imposed termination of Petitioner's employment as the penalty.

Plaintiff filed an appeal pursuant to CPLR Article 75 challenging the disciplinary action, seeking a court order vacating the determination of the hearing officer. Supreme Court vacated the determination of the hearing officer to the extent of the penalty imposed, termination, and remitted the matter back to the hearing officer for a new penalty determination.  

The School Districtappealed the Supreme Court's ruling whereupon the Appellate Division reinstated and confirmed the arbitration award and then remitted the matter to the Supreme Court "for the entry of an appropriate judgment."

The Appellate Division explained that Education Law §3020(1)* controls  in the event the appointing authority initiates a disciplinary action against a tenured teacher and provides that "[n]o person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause" and in accordance with statutory procedures.

Further, opined the Appellate Division, "A court may set aside an administrative [disciplinary] penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness" and the fact that "reasonable minds might disagree over what the proper penalty should have been does not provide a basis for ... refashioning the penalty." In the words of the court, "A [disciplinary] penalty should not be set aside where it is not irrational and does not shock the conscience."

Finding that "in light of all of the circumstances of this case, the penalty of termination is not irrational and does not shock the conscience," the Appellate Division concluded that Supreme Court should not have granted that branch of the Plaintiff's petition seeking to vacate the penalty of termination of the Plaintiff's employment as a tenured teacher.

* Citing Matter of Watkins v Board of Educ. of Port Jefferson Union Free School Dist., 26 AD3d 336, the Appellate Division noted that §3020 is the "exclusive method of disciplining a tenured teacher in New York State."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04474.htm

 _______________

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Restoration to the payroll following an employee's being suspended without pay after being served with disciplinary charges

The appointing authority terminated an employee [Plaintiff] following a §75 hearing. Plaintiff challenged his termination and the Appellate Division found that the Plaintiff's termination was based on "the improper consideration of irrelevant matter." Explaining that in such situations an employee may not be suspended without pay for more than 30 days, the court ruled that Plaintiff was entitled to go back on the payroll pending the results of a new hearing.* 

An employer who has preferred charges against an employee sometimes wishes to avoid having the employee at the work site while the charges are pending. This decision supports restoring a suspended employee to the payroll upon the expiration of the period of suspension without pay otherwise permitted by law or a Taylor Law agreement without having the employee actually returning to the work site.

In contrast, a number of Taylor Law** collective bargaining agreements [CBA] include provisions permitting the appointing authority to suspend employees without pay upon the serving of disciplinary charges until a final disciplinary decision is made while other CBAs permit the appointing authority to deny the charged individual access to the work site but require the employee to be continued on the payroll while the disciplinary action is pending. Courts have upheld the lawfulness of both of these types of CBA contract provisions. 

* In this instance the court directed the appointing authority to pay Plaintiff "the salary he would have earned for the period beginning 30 days after his suspension without pay, less any compensation he derived in that period from other employment, unemployment benefits, or disability or workers' compensation benefits." 

** Article 14 of the New York State Civil Service Law.

The decision is posted on the Internet at: 
https://casetext.com/case/matter-of-chopay-v-town-of-oyster-bay

Agency's decision to revoke Plaintiff's driver's license held to be an arbitrary and capricious action under the circumstances

Plaintiff's driver's license was revoked by the New York State Department of Motor Vehicles [DMV] based on a 24-year-old default conviction for driving without insurance.*

Supreme Court dismissed Plaintiff's CPLR Article 78 petition to stay the enforcement of the one-year revocation of Plaintiff's license by DMV. Plaintiff appealed.

The Appellate Division indicated that its review of the matter was limited to whether DMV's determination was arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion and, citing Pell v Board of Education of Union Free School District No. 1 of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, noted that "An action may be said to be arbitrary if it lacks basis in reason and is taken without regard to the facts."

Observing that the Court of Appeals has indicated that the possession of a license to drive is a vested property right and that "A license to operate an automobile is of tremendous value to the individual and may not be taken away except by due process,"**the Appellate Division opined that "No such due process was afforded to [Plaintiff], who never received notice of the conviction and was led to believe for over 20 years that his license was in order."

According to the decision, DMV admitted it continued to renew Plaintiff's license without apprising him of any problem, most recently in 2019 when Plaintiff renewed his New York State driver's license in person at DMV office and obtained a copy of his driving record abstract which indicated that his license status was "valid." In the words of the Appellate Division, "Imposition of the required penalty 24 years after the fact, which DMV admits was attributable to a potential data-entry error,*** while continuing to renew [Plaintiff's] license without apprising him of any problem, 'is the quintessence of an arbitrary and capricious action.'"

Reversing the Supreme Court's decision, the Appellate Division granted Plaintiff's petition, annulled DMV's decision and remitted the matter to DMV "for further proceedings in accordance with this opinion."

* Vehicle and Traffic Law §318[3][a]-[b] mandates a one-year license revocation upon such conviction.

** See Matter of Wignall v Fletcher, 303 NY 435.

*** When entering Plaintiff's violations into the DMV database, a DMV employee apparently misspelled Plaintiff's surname, which DMV acknowledged was a "possible data-entry error."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04443.htm