Determining if apportionment is to be applied in determining a claimant's workers' compensation award

The Appellate Division, noting that "[as] a general rule, apportionment is not applicable as a matter of law where the preexisting condition was not the result of a compensable injury and the claimant was able to effectively perform his or her job duties at the time of the work-related accident despite the preexisting condition," indicated that a limited exception to this general rule exists.

In the words of the court, "apportionment may be applicable in a schedule loss of use [SLU] case "if the medical evidence establishes that the claimant's prior injury - had it been compensable - would have resulted in an SLU finding."

In the absence of a medical opinion that the claimant's injury would have resulted in an SLU award if it had been compensable, the Appellate Division declined to disturb the Workers' Compensation Board's determination "that there is insufficient evidence to conclude that apportionment was appropriate" under the relevant circumstances with respect to the instant applicant's claim.

Click HERE to access the Appellate Division's decision. 

 

Live Government Technology webinars scheduled for the week of June 1, 2021

A Radically Simple Approach to Disaster Recovery -

Wednesday, June 2 | 1:00pm Eastern

As the value of data is increasing, governments have to be prepared for the worst. Does your organization have a simple yet scalable plan to recover from disasters? In the event of a crisis, how will you restore your data quickly? What happens if you can’t? Too often, state and local governments’ DR plans focus on recovering specific technological systems and associated storage locations. In the modern digital era, however, that approach is outdated and dangerous. Instead, organizations should focus their DR plans on safeguarding and recovering the valuable data – no matter where it lives.
Register to attend here.

Rapid Recovery: How Governments Can Futureproof Data Protection in the Era of Ransomware

Thursday, June 3 | 1:00pm Eastern

The ransomware threat is rising and state and local governments, education institutions and federal agencies continue to be a prime target. While prevention is key, an attack is more and more inevitable in an increasingly digital environment. Instead of spending an endless amount of time and money recovering from ransomware, it’s critical for the public sector to invest in enhanced data protection to ensure rapid restore is possible.
Register to attend here.

How Digital Credentials Fuel Economic Recovery and Better Constituent Service 

Thursday, June 3 | 2:00pm Eastern

The state of New York recently launched Excelsior Pass – a free, voluntary way for residents to share their COVID-19 vaccination or negative COVID-19 test status in accordance with state guidelines. The Excelsior Pass is a privacy-driven solution that will help the New York economy to reopen safely while keeping resident’s personally identifiable information safe. The Excelsior Pass is only one example of how digital credentials can transform constituent engagement, streamline government operations and build a culture of trust. Digital credentials – powered by blockchain technology – can be used for driver’s licenses, professional certifications, hunting and fishing licenses, high school and college transcripts, and more.
Register to attend here.

To view upcoming and on-demand webinars, visit webinars.govtech.com.

For assistance with registration, contact:
Jeremy Smith, jsmith@erepublic.com (916) 932-1402 direct

 

A school board wishing to enter into an executive session in the course of a school board meeting must comply with the relevant requirements set out in New York State's Open Meetings Law

The genesis of Decisions of the Commissioner of Education, Decision No. 17,989, was a ruling by Supreme Court that the school board’s discussion of a certain matter in executive session violated New York State's Open Meetings Law. 

Supreme Court issued a decision declaring that the school board had “violated the Open Meetings Law on June 9, 2020,” finding that there was "no material dispute" that the school board violated §§105 and 106 of the Public Officers by failing to state prior to entering Executive Session the matter that it intended to discuss and thereafter, in fact, discussed that matter.

With respect to Petitioner's appeal to the Commissioner of Education that resulted in Decision No. 17,989, Petitioner contended that he did not engage in “official misconduct” as charged by the school board in view of the Supreme Court’s determination that the challenged Executive Session as conducted by the school board violated the Open Meetings Law.

Decision No. 17,989 is instructive in that in adjudicating Petitioner's appeal, Commissioner of Education Betty A. Rosa addressed the following issues:

1. Efforts by a school board to remove a member of the board for "official misconduct";

2. Requirements to be satisfied by a school board in order to lawfully meet in Executive Session;

3. Allegations that a school board member disclosed "confidential information acquired by him [or her] in the course of his [or her] official duties or [using] such information to further his [or her] personal interests”; and

4. The authority of the Commissioner of Education to "define the meaning of the word 'confidential' within the public school system."

Ultimately the Commissioner found that the school board's removing Petitioner from the board for alleged "official misconduct was arbitrary and capricious" and sustained his appeal challenging such removal.

Click HERE to access Decision of the Commissioner #17,989.

Firefighter's application for accidental disability retirement benefits rejected based on substantial evidence that the injuries were not the result of an accident

A firefighter [Plaintiff] filed an application for accidental disability retirement benefits alleging that he was permanently disabled as a result of injuries sustained during seven different incidents occurring between 2006 and 2017. ERS, however, denied Plaintiff's application upon the ground that the incidents did not constitute accidents within the meaning of Retirement and Social Security Law §363. Ultimately Plaintiff withdrew four of the seven incidents, and the sole issue to be resolved was whether these incidents "qualified as accidents."

The ERS Hearing Officer denied Plaintiff's application, finding, among other things, that the cited incidents occurred during the course of Plaintiff's routine employment duties and were risks inherent in the performance of those duties. The Comptroller sustained the Hearing Officer's determination and Plaintiff initiated a CPLR Article 78 proceeding challenging the Comptroller's decision.

"As the applicant, [Plaintiff] bore the burden of establishing that his disability was the result of an accident within the meaning of the Retirement and Social Security Law ... [the Appellate Division said that the Comptroller's] determination on that point will be upheld if supported by substantial evidence in the record as a whole. Further, said the court, "for the purposes of §363, an accident is "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact," citing Matter of Kenny v DiNapoli, 11 NY3d 873 and other court decisions. In contrast, opined the Appellate Division, "[a]n injury that results from the performance of ordinary employment duties and is a risk inherent in such job duties is not considered accidental."

The decision reports that Plaintiff "does not dispute, and the record indeed establishes, that [Plaintiff] was engaged in the performance of his ordinary firefighting duties during each of the incidents at issue" which involved encountering smoke, water, tangled hose lines, reduced visibility and debris, falling ice that 'could have been reasonably anticipated' as well as the corresponding threat of tripping or falling due to such conditions."

Concluding that substantial evidence supported ERS's finding that the incidents at issue did not constitute accidents within the meaning of §363, the Appellate Division declined to disturb the Comptroller's decision.

Click HERE to access the Appellate Division's decision. 

Former town clerk to serve six months in county jail after pleading guilty to stealing public funds

New York State Comptroller Thomas P. DiNapoli reported that a former town clerk [Clerk] was sentenced to six months in County jail for stealing nearly $27,000 in public funds for her personal use after she pled guilty to a number of criminal charges including "grand larceny in the third degree/public servant (a class C Felony); two counts of tampering with public records in the first degree (a class D felony); scheme to defraud in the first degree (a class E felony) and official misconduct (a class A misdemeanor)."

Clerk's thefts, which were discovered during a joint investigation by the State Comptroller's office, Yates County District Attorney Todd Casella’s office and Yates County Sheriff Ronald Spike’s office, consisted of cash payments made to the town for property taxes and fees for marriage licenses, dog licenses, hunting permits and building permits. The Comptroller said the funds stolen were used by Clerk "to support her personal lifestyle, including trips to casinos and gambling websites."

Comptroller DiNapoli opined that “[w]hen a public servant steals taxpayer funds, it damages the public’s trust in government.” "A public office is a public trust and regrettably this town clerk acted contrary to their oath,” said Yates County Sheriff Spike. “I thank all involved in this criminal investigation, prosecution, and conviction, especially the New York State Comptroller’s office for their forensic work.”

Such misconduct by a public officer is referred to as "Jobbery" -- using one's public office or position of trust for ones' personal gain or advantage. Having taken advantage of the trust placed in her, Clerk will pay $26,729 in restitution as part of her plea agreement, of which she has already paid $20,000. 

Click HEREto access the full text of the Comptroller's statement.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at, investigations@osc.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

Establishing a prima facie case of unlawful discrimination

In Joseph v. Leavitt, 465 F.3d 87, the United States Circuit Court of Appeal held that "A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment."

In the instant case, the Circuit Court indicated that only certain prongs of Plaintiff's prima facie case were in dispute, i.e., the extent to which Plaintiff suffered the alleged adverse employment action or actions and whether those actions occurred under circumstances that give rise to an inference of discrimination. Here, said the court, Plaintiff's employment was terminated, "which itself is, of course, an adverse employment action."

Noting that there were factual issues regarding whether the New York Police Department's [NYPD] investigating personnel's pre-termination conduct constituted an adverse employment action, the Circuit Court opined that "[v]iewing the evidence in a light most favorable to Plaintiff, a reasonable juror could infer that the investigators' consulted with certain NYPD units "not because of information linking [the Plaintiff to] terrorism but because of [Plaintiff's] national origin, ancestry, or religion. Further, the court indicated that under the circumstances, "[a] reasonable juror could also infer that, after the ... investigator did so, it resulted in a more searching investigation and harsher discipline than had [the NYPD] applied its standard investigative and disciplinary procedures.

The Circuit Court also concluded that Plaintiff presented sufficient evidence to raise a triable issue of fact as to whether the investigation and termination occurred giving rise to an inference of discrimination, i.e., statements made by NYPD personnel in which "they noted [Plaintiff's] national origin (Egyptian) and his ancestry (Middle Eastern) while investigating his alleged misconduct." Further, the decision states that Plaintiff had set forth evidence that NYPD launched an investigation into Plaintiff and his family involving the NYPD personnel, which, arguably, "was a departure" from the NYPD's normal investigative procedures.

Accordingly, the Circuit Court concluded that Plaintiff provided "admissible evidence sufficient to permit a rational finder of fact to infer a discriminatory motive" and Plaintiff's factual claims under the New York City Human Right Law must be analyzed "more liberally" than his federal discrimination claims.

Considering the fact that Plaintiff advanced sufficient facts to carry the heavier burden of establishing his federal claims, the Circuit Court said it had "no trouble concluding that he set forth sufficient facts to carry the lesser burden on his city claims," and remand the matter to the federal district court "for further proceedings consistent with this order." 

Click HEREto access the Second Circuit's decision.

Determining legislative intent in interpreting a statute

In a consolidated proceeding pursuant to Election Law Article 16, petitioners [Plaintiffs] sought judicial review a determination of the Suffolk County Board of Elections denying Plaintiffs' objections to a petition designating Kate M. Browning as a candidate in a primary election and sought a court order to compel the Suffolk County Board of Elections to remove Ms. Browning's name from the ballot in that primary election and other relief.

Supreme Court granted Plaintiffs' petition and issued a "final order" compelling the Suffolk County Board of Elections to remove Ms. Browning's name from the ballot. Supreme Court had concluded that Ms. Browning was ineligible to serve as a Suffolk County Legislator as a term limits provision in the Suffolk County Charter*  provided that "[n]o person shall serve as a County Legislator for more than 12 consecutive years".

Ms. Browning appealed and the Appellate Division reversed the lower court's ruling "on the law."

The Appellate Division, noting that "[T]he plain language of the statute ... is the clearest indication of legislative intent," opined that Article II, §C2-5[B] does not expressly impose any total or lifetime term limit. Rather, said the court, "the plain language of the provision only prohibits a County Legislator from serving more than 12 consecutive years." Citing Andryeyeva v New York Health Care, Inc., 33 NY3d 152, the Appellate Division said that in construing a statute, "words must be 'harmonize[d]' and read together to avoid surplusage."**

Accordingly, the court declared that the provision set out in the County Charter relied upon by Petitioners seeking the removal of Ms. Browning's name from the ballot in the primary election "should not be interpreted as prohibiting an individual who has previously served as a County Legislator for 12 consecutive years from thereafter seeking a new term in that office, so long as the new term sought is not consecutive to the preceding term."

Thus, said the Appellate Division, Supreme Court should have denied the Plaintiffs' petitions and dismissed the proceeding.

* See Article II, §C2-5[B].

** Courts should not interpret any statutory provision in a way that would render it or another part of the statute inoperative or redundant. 

Click HERE to access the Appellate Division's decision.

A request for reconsideration of a final administrative determination does not extend or toll the running of the statute of limitations

The Petitioner [Plaintiff], a retiree, in this CPLR Article 78 challenged the appointing authority's [Town] decision denying his request to change his health insurance provider. The Town moved to dismiss Plaintiff's action, contending that it was untimely.

Supreme Court granted Town's motion for summary judgment and, in effect, dismissed the proceeding. Petitioner appealed but the Appellate Division affirmed the lower court's ruling, with costs.

In affirming the lower court's ruling, the Appellate Division:

1. Noted that an Article 78 proceeding must be commenced within four months after the administrative determination sought to be reviewed becomes final and binding upon the petitioner;

2. Explained that an administrative determination "becomes final and binding when 'the agency ... reache[s] a definitive position on the issue that inflicts actual, concrete injury and ... the injury inflicted may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party'";

3. Pointed out that the party seeking to assert the statute of limitations as a defense has the burden of establishing that the petitioner was notified of the determination more than four months before the proceeding was commenced; and

4. Observed that "... a request for reconsideration of an administrative determination does not extend or toll the statute of limitations or render the otherwise final determination non-final unless the agency's rules mandate reconsideration."

Here, said the court, the Town's determination denying Plaintiff's request to change his health insurance provider became final and binding no later than February 8, when the Plaintiff received notice of the denial by telephone and email. Accordingly, the Appellate Division concluded that Plaintiff's petition, filed in September, was untimely.

Click HERE to access the Appellate Division's ruling. 

 

Audits and reports issued during the week ending May24, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending May 21, 2021.

Click on the text highlighted in colorto access the complete audit report.

Local Governments

Brooktondale Fire District – Purchases and Disbursements (Tompkins County) - District officials ensured the purchases and disbursements auditors examined were proper and supported.  Auditors reviewed 39 disbursements (totaling $119,590) of 304 disbursements (totaling $826,000) paid during the audit period. The auditors found the reviewed purchases followed the district’s purchasing policy, were adequately supported, and approved prior to payment. As a result of this audit, there were no recommendations

City of Cortland – Credit Accounts and Employee Reimbursements (Cortland County) - City officials did not ensure all credit account purchases and employee reimbursements were properly supported and for appropriate purposes. There were no formal city-wide policies in place to address the usage, documentation and approval of credit account purchases. As a result, 314 of the 438 (72 percent) claims auditors reviewed were either not properly supported or for questionable or inappropriate purchases.

Town of Caneadea – Fund Balance Management (Allegany County)- The board did not effectively manage fund balance and spent down fund balance by $427,000 or 71 percent. The board also appropriated fund balances the town did not have, which resulted in deficit, or negative fund balances, in the general fund. The board did not develop and adopt a comprehensive written fund balance policy, a multiyear financial plan, or capital plans. As a result, the board’s ability to know what effect financial decisions would have on future fund balance levels was diminished.

Herkimer-Fulton-Hamilton-Otsego Board of Cooperative Educational Services (BOCES) – Online Banking (Fulton County, Hamilton County and Otsego County)- BOCES officials did not establish adequate controls to ensure online banking transactions were appropriate and secure. Online banking transactions are not compared to supporting documentation. Bank agreements lack important components such as identifying who is authorized to process online banking transactions or requiring the bank to provide confirmations of online transactions. A dedicated computer is not used for online banking.

In addition, auditors conducted reviews of 20 adopted budgets of various counties, cities, towns and villages across the state to assess whether local officials adequately considered the impact of the pandemic on their financial operations while developing their 2021 fiscal year budgets. Below are the findings of some of the communities reviewed:

Adequacy of 2021 Budgets – Genesee County - Genesee County officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – Town of Herkimer (Herkimer County)- Town of Herkimer officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – City of Norwich (Chenago County) - City of Norwich officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – Village of Ossining (Westchester County)- Village of Ossining officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets – City of Saratoga Springs (Saratoga County)- City of Saratoga Springs officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget. However, city officials should develop a plan and make budgetary modifications to balance the budget for the $1.15 million Federal aid revenue shortfall. They should also closely monitor revenue estimates for Aid and Incentives for Municipalities (AIM) funding and Video Lottery Terminal (VLT) aid throughout 2021 and develop a plan to balance the budget in the event these revenue projections are not fully realized. 

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

 

Arbitrator's award in a disciplinary arbitration of alleged sexual harassment charges vacated as violative of public policy

The appointing authority [Employer] issued a notice of suspension and a notice of discipline to an employee [Respondent] advising him of his immediate suspension, without pay based on various disciplinary charges related to allegations of sexual harassment in the workplace. The notices specified that the Employer was seeking a penalty terminating Respondent's employment. Ultimately the matter proceeded to arbitration pursuant to a collective bargaining agreement [CBA] between the Employer and Respondent's collective bargaining representative.

Following a hearing, the arbitrator issued a "Decision and Award" sustaining four of the 13 charges served on Respondent and determined that:

1. There was probable cause for the interim suspension;

2. There were "certain mitigating factors warranted a penalty less than termination; and

[3] Characterized the Decision and Award as "a final warning" to Respondent that "any repeat of offending conduct will most surely result in [Respondent's] termination."

Employer initiated a CPLR Article 75 proceeding seeking to vacate the arbitration award, contending that the penalty was against public policy. Supreme Court granted the Employer's petition, vacated the award and remitted the matter for the imposition of a new penalty before a new arbitrator. Respondent appealed the court's ruling.

The Appellate Division said that the core issue presented is whether the arbitrator's award violated established public policy considerations prohibiting sexual harassment in the workplace, noting that, Supreme Court recognized, "that there is a strong public policy under both state and federal law that prohibits sexual misconduct in the workplace."

Noting that a court may vacate an arbitrator's award only on grounds stated in CPLR §7511(b), which include an instance where an arbitrator "exceed[s] his [or her] power" by rendering an award that violates a strong public policy, the Appellate Division observed that this limited public policy exception pertains "only when 'public policy considerations, embedded in statute or decisional law, prohibit, in an absolute sense, certain relief being granted by an arbitrator' [and] the courts must be able to examine the award on its face without engaging in extended fact-finding, or legal analysis, and conclude that public policy precludes its enforcement." This inquiry necessitates that courts gauge the penalty against the sustained charges.

The arbitrator sustained charges that alleged the Respondent had sexually harassed a female coworker. Indeed, the coworker's complaint with respect to the last incident suffered as the result of Respondent's alleged sexual harassment prompted an investigation and the filing of the instant disciplinary charges on the Respondent by the Employer. In addition, the coworker also filed criminal charges against Respondent, resulting in Respondent's plea of guilty to harassment in the second degree.

Conceding that the findings of the arbitrator are not challenged on this appeal, only the penalty imposed, the Appellate Division noted that under relevant provisions of the CBA, the arbitrator's decision:

1. As to the penalty to be imposed "shall be final and binding upon the parties"; and

2. The arbitrator is authorized to "take any ... appropriate action warranted under the circumstances including ... ordering reinstatement and back pay for all or part of any period of suspension without pay." 

The Employer, however, contended that the arbitrator's reinstatement of Respondent without conditions violates the public policy against sexual harassment.

Citing Newsday Inc. v Long Island Typographical Union No. 915, CWA, AFL-CIO, 915 F2d at 844-845, the Appellate Division noted that the United States Court of Appeals, Second Circuit, held that an arbitral award was properly vacated under the public policy exception where an arbitrator reinstated a terminated employee who had engaged in multiple acts of sexual harassment. 

Although the employee in Newsday had previously been disciplined for such conduct and warned, as here, that similar future conduct would warrant immediate discharge, the Appellate Division noted that Respondent did not have a disciplinary history. The Appellate Division, observed that unlike the employee in Newsday Respondent does not have a "disciplinary history", ... [but] ... "we have a series of four separate, escalating and outrageous sexual harassment incidents" by the Respondent.

This, said the Appellate Division, is "particularly troublesome" considering that Respondent had engaged in annual sexual harassment training since 2013 and, when confronted by his supervisors after two recent incidents of sexual harassment, "promised not to re-offend." In the words of the court, "The events that followed were even more egregious and rise to the level of criminal conduct, as memorialized in [Respondent's] guilty plea to the harassment charge."

Given the "extremely inappropriate nature" of Respondent's conduct, the Appellate Division concluded that the arbitrator's decision violated public policy, that the award failed to account for the rights of other employees to a non-hostile work environment and that it conflicted with the Employer's obligation to eliminate sexual harassment in the workplace. 

Finally, opined the court, "The fact that the victimized coworker no longer worked in the office is hardly a mitigating factor" nor is the penalty imposed on Respondent by the arbitrator "consistent with the arbitrator's 'significant concern' that [Respondent] failed to acknowledge his own wrongdoing."

Concluding that Supreme Court properly vacated the award as violative of the public policy prohibiting sexual harassment, the Appellate Division also ruled that Supreme Court was authorized to remit the matter to a different arbitrator for the imposition of a new penalty.

Click HERE to access the Appellate Division's decision. 

 

Unfair rejection of applicants for employment or a license required for employment because of a conviction of a criminal offense prohibited

In describing the thrust of New York State's Correction Law §752 the Appellate Division said §752 prohibits unfairly discriminating against persons previously convicted of one or more criminal offenses absent "a direct relationship between the offense(s) and the duties or responsibilities inherent in the license or employment sought or held by the individual, or such employment or license poses an unreasonable risk to the public" after consideration of certain enumerated elements set out in the statute.

The New York City Transit Authority [NYCTA] denied a former employee [Plaintiff] re-employment because he had been convicted of criminal possession of a firearm.

Plaintiff brought a CPLR Article 78 action and subsequently appealed Supreme Court's dismissal of his petition seeking a court order directing NYCTA to approve his application for reemployment. The Appellate Division sustained the Supreme Court's ruling, noting that NYCTA "reasonably determined" that Plaintiff's re-employment would pose an unreasonable risk. 

The court explained that when making its determination under color of §752, the public employer must consider the eight enumerated factors set out in Correction Law §753(1). These include, but are not limited to, considering the specific duties and responsibilities related to the employment sought, the age of the person at the time of the criminal offense, the seriousness of the offense, and information produced by the person with respect to his rehabilitation and good conduct. 

In its decision the court referred to an affidavit submitted by NYCTA's Director of Employment Operations for Human Resources indicating that NYCTA had reviewed the recommendation letters and certificates submitted by Plaintiff in support of his reemployment by NYCTA but had decided not to re-employ Plaintiff after considering all of the relevant factors including:

[1] The duties and role of the position Plaintiff was seeking;

[2] Plaintiff's prior work history with NYCTA;

[3] The seriousness of Plaintiff's prior misconduct; and 

[4] The amount of time that had elapsed since Plaintiff's misconduct.

Citing Bonacorsa v Van Lindt, 71 NY2d 60, the Appellate Division observed that a finding of unreasonable risk "depends upon a subjective analysis of a variety of considerations relating to the nature of the license or employment sought and the prior misconduct."

The Appellate Division opined that NYCTA's determination that Plaintiff would pose an unreasonable risk because "he was convicted of criminal possession of a firearm only two years before seeking re-employment with NYCTA and he sought a role that required unsupervised contact with the public and other employees" was reasonable and unanimously affirmed the Supreme Court's ruling.

Click HEREto access the Appellate Division's decision.

Performance reports and the testimony by administrators submitting the reports considered by the arbitrator in a disciplinary hearing

Supreme Court denied the Plaintiff's petition to vacate an arbitration award terminating Plaintiff's employment and granted the Appointing Authority's cross motion to dismiss Plaintiff's petition. Plaintiff appealed Supreme Court's disposition of the matter.

The Appellate Division unanimously affirmed [1] the Arbitrator's finding the Petitioner guilty of the disciplinary charges and specifications filed against him and [2] the penalty imposed, dismissal from his position. The court noted that the Arbitrator's decision was supported by the evidence, which included "eight observation reports and credible testimony of the principal and assistant principals who authored those reports," which described Plaintiff's persistent teaching deficiencies and inability to control his students.

Further, said the court, "[t]he evidence also demonstrated the school administrators' efforts to remediate [Plaintiff's] deficiencies, which ultimately were unsuccessful due to [Plaintiff's] lack of effort or interest in improving his performance."

Addressing the penalty imposed, termination of Plaintiff's employment, the Appellate Division opined that the penalty of dismissal "does not shock the conscience" in light of the prior disciplinary action taken against Plaintiff's which documented Plaintiff's "inability to meet standards of effective instruction" after considerable attempts were made to help him to improve his performance.

Click HERE to access the Appellate Division's decision.