Determining if assigned duties constitute out-of-title work

Determining if assigned duties constitute out-of-title work
CSEA v Angello, App. Div., Third Dept.,

CSEA, representing 128 employees of the Central New York Developmental Disabilities Service Organization serving as Developmental Aide - In Residence [DA-IR9] filed a grievance claiming that such employees were routinely assigned supervisory duties of a SG-12 Developmental Assistant I - In Residence [DAI-IR12] and that such tasks constituted out-of-title work under the relevant Taylor Law contract.

The SG-12 duties allegedly assigned to the SG-9 workers: submit budget reports, purchase requests, maintenance logs, time and attendance sheets, vehicle reports, formulate menus, supervise client recreational activities, provide for subordinate staff training and make decisions concerning the operation of the sleepover residences on a regular basis.

The grievance was denied at all steps of the contract grievance procedure and CSEA appealed. A state supreme court dismissed CSEA’s petition after finding that the duties complained of were not beyond the contemplation of the job description for DA-IR9 nor excessively complex or difficult, that CSEA failed to show that class members spent a significant amount of time at the objectionable tasks. Supreme Court concluded that there was a rational basis for denial of the grievance.

Pointing out that although [o]ut-of-title work, other than on an emergency basis, is prohibited by Section 61.2 of the Civil Service Law, the performance of duties by a grievant which are substantially similar to those set forth in that person’s job description does not constitute out-of-title work, nor does some overlap of the duties of a DA-IR9 employee and the higher grade DAI-IR12 employee.

The Appellate Division affirmed the lower court’s dismissal of CSEA’s petition. Its rationale: CSEA’s main argument that DA-IR9s were routinely assigned supervisory duties of DA1-IR12s is tempered by CSEA’s concession that “... DA-IR9s do not supervise other employees and the tasks of preparing and submitting budget reports, purchase requests and other documents performed by DA-IR9s in their residential settings ... were rationally determined not to be out-of-title work or [constituted a] permissive overlap of the duties of DAI-IR12s who supervise those residences.”
NYPPL

Administrative Law Judge examination scheduled

Administrative Law Judge examination scheduled
Source: New York State Department of Civil Service

The New York State Department of Civil Service will hold an examination for Administrative Law Judge, NYS Workers Compensation Board, on February 5, 2011. This is an “SG-28 position, with a starting salary of $86,168.

Appointees working in the five boroughs of New York City or in Nassau, Suffolk, Rockland, or Westchester Counties will receive an additional $3,026 annual “downstate salary adjustment.” Appointees working in Dutchess, Orange, or Putnam Counties will receive an additional $1,513 annual “mid-Hudson salary adjustment.”

A $45 application fee is required.

N.B. The deadline for filing applications is January 3, 2011.

This examination open to all individuals meeting the minimum qualifications set out in the Examination Announcement.

There is an "ONLINE APPLICATION PROCESS" available at http://www.cs.state.ny.us/exams
For additional information, including a description of the duties of the position, and the minimum qualifications for this examination, go to: http://www.cs.state.ny.us/examannouncements/announcements/pdf/25-438.pdf
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Fruits of an undercover investigation used as a basis for disciplinary charges

Fruits of an undercover investigation used as a basis for disciplinary charges
DiGiovanni v Safir277 AD2d 36

May the appointing authority bring disciplinary action against an employee based on information obtained from undercover police officers. As the DiGiovanni decision indicates, such information can serve as a basis for filing disciplinary charges against an individual.

In this instance an undercover police officer and her supervisor testified that George DiGiovanni approached a police decoy and proposed oral sex for a fee.

DiGiovanni, as it turned out, was a New York City police officer. As a result of this episode, he was served with administrative disciplinary charges. The hearing officer found him guilty of soliciting sex and imposed the penalty of dismissal. DiGiovanni appealed only to have the Appellate Division unanimously affirm both the administrative determination that he was guilty of the charges filed against him and penalty imposed.

The Appellate Division decided that the evidence presented at the disciplinary hearing supported the finding that DiGiovanni was guilty of soliciting sex for money from a person believed by him to be a prostitute.

Turning to DiGiovanni’s objection to his being dismissed from his position, the court said that "[g]iven the gravity of the offense and [DiGiovanni’s] prior disciplinary history, the penalty imposed does not shock our conscience."

The court’s reference to DiGiovanni’s prior disciplinary history suggests that the department asked the hearing officer to consider DiGiovanni’s personnel history in determining the penalty to be imposed.

An employee’s personnel records may be considered by a hearing officer when the setting a disciplinary penalty provided the appointing authority has complied with the procedures set out by the Court of Appeals in Bigelow v Village of Gouverneur, 63 NY2d 470. The procedures to be followed in order to satisfy the Bigelow test:

1. The employee must be advised that his or her prior disciplinary record will be considered in setting the penalty to be imposed; and

2. The employee must be given an opportunity to submit a written response to any adverse material contained in the record or offer mitigating circumstances.
NYPPL

Modifying employee work schedules

Modifying employee work schedules
Maineri v Syosset CSD, 276 AD2d 793

Contract grievances involving changing an individual’s work schedule generally are resolved by interpreting the language set out in the collective bargaining agreement. Of equal importance in such situations is whether the contract is silent or sets out exclusions with respect to such changes as the Maineri case demonstrates.

David Maineri sued the Syosset Central School District after the district denied his grievance challenging a change in his working hours. A State Supreme Court justice dismissed his petition and Maineri appealed.

The Appellate Division, Second Department, affirmed the lower court’s ruling. The court said that dispute, which centered on Maineri’s working hours, was covered by the terms and conditions of the parties’ collective bargaining agreement and, therefore there is no further statutory duty to bargain collectively with respect to the matter.

On the merits, the court ruled that “the district did not violate the parties’ collective bargaining agreement by altering [Maineri’s] working hours since the agreement did not establish the his right and entitlement to specific hours of work.” In the words of the court, “in the absence of such entitlement there can be no violation of the contract by the alteration of those hours.”

In addition, the court said that “the school district, as a municipal entity, may not be estopped from changing the [Maineri’s] working hours to correct errors in those hours, since the challenged alteration concerns the performance of a governmental function.”

In another change of work schedule case, In the Arbitration between Sullivan County and Teamsters Local 445, 276 AD2d 861, Appellate Division, Third Department, [Motion for leave to appeal denied, 96 NY2d 703 ], the court overturned an arbitrator’s ruling that Sullivan County had violated the collective bargaining agreement when it unilaterally changed the work schedule of certain employees.

The individuals involved worked 35 hours per week as aides for the County’s Division of Health and Family Services. Their work schedule: Monday through Friday, between the hours of 9:00 A.M. and 5:00 P.M.

In response to a decline in the demand for home health aide services, the County changed all full-time aide positions to part-time positions. The aides filed a contract grievance and the arbitrator ruled that the change from full-time to part-time constituted a violation of the collective bargaining agreement. The arbitrator ordered the County to restore the aides to full-time status [i.e., 35-hours per week] with back pay.

A State Supreme Court judge vacated the award on the grounds that the arbitrator had misread the Taylor Law agreement. The Appellate Division affirmed the lower court’s ruling.

First the Appellate Division noted that judicial review of an arbitration decision is limited and such a decision will not be disturbed unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power, citing Matter of the Town of Callicoon, 70 NY2d 907. Here, however, the court concluded that the arbitrator erroneously applied Section 408 of the agreement to the aides’ positions and, therefore, his decision was irrational.

The agreement did, in fact, set out the workday, workweek and overtime for certain workers. The decision notes that Section 401 of the agreement defined the normal work week and indicates that [e]xcept as hereinafter provided, the work week of all employees shall be five (5) days, Monday through Friday, seven (7) hours per day, thirty-five (35) hours per week [and] [t]he hours of employment shall be 9:00 A.M. to 5:00 P.M.

The agreement also sets a 40-hour work week for certain of workers, and further provides that [n]otwithstanding anything to the contrary contained in this Article, employees who work a five (5) day, forty (40) hour week, excluding time off for lunch, Monday through Friday, shall continue [Section 408 of the agreement].

The court said that the aides worked a 35-hour workweek prior to the reduction of their hours. It agreed with the Supreme Court’s conclusion that Section 408 relates only to employees who work 40 hours per week and cannot reasonably be interpreted as applicable to the aides’ positions.

Since there was not other provision in the agreement preventing the County from unilaterally reducing the hours of the aides due to business necessity, the Appellate Division concluded that the arbitrator’s award was properly vacated.

The Appellate Division also commented that:

"Indeed, Section 2502(d) [of the contract] expressly vests [the county] with the authority [t]o relieve employees from duties because of lack of work or other legitimate reason. Taking the above into consideration and applying Section 2103 of the agreement that specifically prohibits modification of its provisions by arbitration, we conclude that Supreme Court properly vacated the award."
NYPPL

Employee disciplined for disruptive behavior alleges charges were based on the employer's perception of a disability

Employee disciplined for disruptive behavior alleges charges were based on the employer's perception of a disability
Robinson v NYS Division of Human Rights, 277 AD2d 76

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

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

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

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

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

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

The Appellate Division explained that “[t]here is ample evidence of [Robinson’s] erratic and hostile conduct to warrant subjecting him to physical and psychological evaluation.”

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

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

New York State Register

New York State Register
Source: New York State Department of State

The New York State Register provides notice of proposed new administrative rules and amendments to existing administrative rules. It also posts emergency rules and other information.

Also available is the revised Rule Making in New York manual. The manual outlines the procedures for preparation of SAPA notices for the New York State Register and for Filing adopted rules for publication in the official NYCRR. You may download PDF version of the manual by clicking here (218kb 74 pages).

To access the New York State Register on the Internet, go to: http://www.dos.state.ny.us/info/register.htm

The Department of State’s site also provides a fully searchable "rule making" database starting with postings from 2007. Postings are provided in a PDF format.

You may subscribe to a free weekly State Register email alert using a link provided on the site. that will notify subscribers when new postings are available.

An administrative agency must follow the rules and regulations applicable to it in making its final administrative decision

An administrative agency must follow the rules and regulations applicable to it in making its final administrative decision
Matter of Hasberry v New York City Dept. of Educ., 2010 NY Slip Op 08792, decided on November 30, 2010, Appellate Division, First Department

The Department of Education (DOE) rejected applications for certification as New York City school bus drivers or bus escorts filed by a number of individuals on the basis of “criminal convictions that purportedly rendered them unsuitable to perform the duties associated with the transportation of school age children.”

While Supreme Court dismissed the petitions challenging this action, the Appellate Division reinstated the petitions with respect to DOE and remitted the matter to DOE for further proceedings.

Although the applicants were all denied certification on the basis of criminal convictions, the Appellate Division noted that the New York City Chancellor's Regulation C-105 provides that "If, prior to the conclusion of any background investigation, information of a derogatory nature is obtained which may result in denying the application for license, certification or employment, an applicant will be given an opportunity to review such information with the [Office of Personnel Investigation] and to include in the investigatory file, any written statements or documents which refute or explain such information."

In this instance, said the court, DOE did not provide the applicants with such an opportunity prior to making its determinations.

Conceding DOE’s concerns and “the need to protect the safety of children to be transported,” the Appellate Division said that DOE is bound by its own rules and regulations, including its procedural rules. Here the applicants were not given an opportunity to review the information that DOE relied upon in making its determination prior to its making its decision.

The court directed DOE to provide the applicants with an opportunity to review the information upon which DOE's determinations were based and to submit such statements and documents they wish in explanation or rebuttal of such information as required by Chancellor’s Regulation C-105.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08792.htm
NYPPL

Appointing authority’s threat to take action against an employee that is otherwise lawful to attain a desired result does not constitute duress

Appointing authority’s threat to take action against an employee that is otherwise lawful to attain a desired result does not constitute duress
Matter of Buric v Kelly, 2010 NY Slip Op 08786, Decided on November 30, 2010, Appellate Division, First Department

John Buric challenged the Police Commissioner’s determination that he be retired with ordinary disability retirement benefits.

Essentially Buric complained that his decision to file for a service retirement was involuntary and the result of fraud, duress, coercion, or other misconduct by New York City Police Commissioner Raymond Kelly.

Supreme Court rejected Buric’s claim that he was told that “he had to make an immediate decision with respect to his pension election, that he could not indicate on his election letter that his decision was made under duress, or that it would be futile to consult an attorney prior to making such an election.”

In affirming the lower court’s decision the Appellate Division observed that Supreme Court’s “findings of fact, based in large measure on its assessment of the credibility of the witnesses,” were supported by a fair interpretation of the record evidence.

Addressing Buric allegations that “he was given two unpalatable choices,* or that he chose the service retirement due to financial considerations,” the Appellate Division said that neither constituted duress, citing two decisions; Wolfe v Jurczynski, 241 AD2d 88, and Matter of Donato v Mills, 6 AD3d 966.

* In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals ruled that an appointing authority’s threat to undertake certain action that it otherwise had the legal right to take did not constitute duress.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08786.htm
NYPPL

Assumption of risk in a work-related activity

Assumption of risk in a work-related activity
Rios v Town of Colonie, 256 AD2d 900

Public safety agencies often sponsor athletic events or authorize members to participate in them. The Rios case involved Ramon Rios, a Town of Colonie corrections officer, who was injured while participating in “Department Olympics.”

Rios alleged that he was injured when he entered an obstacle course, which included a three-foot diameter black plastic culvert pipe and grazed his head on the “sharp and jagged edge of the pipe.” The cut to the top of his head required 21 sutures to close. He sued the town for his injuries.

Colonie objected and asked a Supreme Court judge to dismiss Rios’ complaint, contending that the doctrine of assumption of risk applied in this case.*

When the court dismissed the town’s motion, it appealed. The Appellate Division sustained the lower court’s ruling, indicating that Rios’ allegations had raised “genuine factual issues” as to whether the “sharp, razor-like and serrated edge” of the culvert pipe posed an open and obvious risk to him, or whether it constituted an “unassumed, concealed or unreasonably increased risk” to Rios.

Noting that Rios’ time to inspect the course was limited to a brief “walk-through” prior to the race, the Appellate Division returned the matter to the lower court for further action.

* The doctrine of assumption of risk holds that a participant in an athletic event of this type “assumed the risks that are generally inherent and flow from his [or her] participation” in these events. The participant in such events, however, does not assume risks that are unique and resulted from dangerous conditions.
NYPPL

Challenging a disciplinary penalty

Challenging a disciplinary penalty
Mantione v Levin, 277 AD2d 952

Ever wonder why some disciplinary action appeals are transferred to the Appellate Division by a State Supreme Court Judge? The Mantione decision sets out guidelines followed by the Appellate Division courts in determining whether a petition seeking to vacate or modify the penalty imposed in a disciplinary proceeding should be transferred to it.

Essentially, cases filed in Supreme Court that turn on whether or not the determination of guilt is supported by substantial evidence are to be transferred to the Appellate Division.

Salvatore S. Mantione was disciplined by the Commissioner of Insurance. Mantione admitted that he committed the acts alleged in the charges. Although neither party raised the issue whether the determination of guilt is supported by substantial evidence, a State Supreme Court judge decided that it was necessary to independently analyze the case to decide whether the substantial evidence test is properly applicable.

As any issue concerning substantial evidence is to be determined by an Appellate Division tribunal, the Supreme Court Judge sua sponte [on its own motion] determined that transfer was mandated by Civil Practice Law and Rules Sections 7803(4) and 7804(g) and sent it to the Fourth Department.

The Fourth Department said that the lower court was incorrect as a matter of law in finding an issue of substantial evidence and that the proceeding should not have been transferred.

It vacated the order transferring the action and returned the case to Supreme Court to review the penalty imposed. In other words, questions involving whether or not an administrative determination is supported by substantial evidence are to be resolved by the Appellate Division.

In contrast, questions concerning the reasonableness of the penalty imposed by an administrative tribunal after it finds a party guilty are to be initially considered by a State Supreme Court Judge.

As then State Supreme Court Judge Walter J. Relihan, Jr. stated in Eckstrom v City of Ithaca, [not officially reported], since the issue before him was not whether the administrative decision was supported by substantial evidence but rather whether the resolution violated Eckstrom’s rights as a matter of law, it should not be transferred to the Appellate Division.

Employee claims termination was in retaliation and that her employer defamed her

Employee claims termination was in retaliation and that her employer defamed her
Employee claims termination was in retaliation and that her employer defamed her
Gilligan v Town of Moreau, CA2, 2000 U.S. App. LEXIS 27198

In the Gilligan case the major issues involved allegations by a former employee of the Town of Moreau (a) that she was dismissed from her position with the Town in retaliation for her testifying before a grand jury and (b) that she had been defamed by Town officials.

Among the events that resulted in this litigation was a New York State Police investigation of the activities of the Town Supervisor, Michael Sullivan, and Frank Burt, a contractor hired to haul sand to the town’s landfill. Danielle Gilligan, an equipment operator at the landfill, and the other landfill employees, together with other Town employees, testified before the grand jury impaneled to consider criminal charges leveled against Burt and Sullivan.

During the summer and fall of 1995, Sullivan reportedly made vulgar, derogatory comments about Gilligan and told Board members of a rumor that Gilligan had been caught having sex on town property, even though he believed the rumor nonsensical. Gilligan was terminated from her position in February, 1996.

Gilligan sued, alleging that her terminations, and other adverse employment actions taken against her, were in retaliation for her grand jury testimony and that she had been defamed by Town officials.

Concerning retaliation

The Second Circuit, noting that [i]t is well settled that a public employer cannot discharge or retaliate against employees for the exercise of their First Amendment right to free speech, indicated that Gilligan’s grand jury testimony is such a protected activity. Further, said the court, it is well settled that discharge is an adverse employment decision.

In order to win a retaliatory discharge claim, however, the employee must, by a preponderance of the evidence, prove:

1. he or she engaged in a protected activity;

2. suffered an adverse employment decision; and

3. there was a causal link between her protected activity and the adverse employment decision.

The test to be met in order to demonstrate a causal connection between the protected activity and the retaliatory discharge: sufficient evidence to support an inference that the protected speech was a substantial motivating factor in the adverse employment action. Stated another way: the adverse employment action would not have been taken absent the employee’s protected speech.

The employee may prove such a casual connection by showing (a) the retaliatory action occurred close in time to the protected activities; (b) disparate treatment compared to similarly situated employees or (c) direct proof of retaliatory animus against the individual.

Here the Circuit Court concluded that Gilligan failed to show a causal connection between her grand jury testimony and her eventual discharge. Why? Because, said the court, Gilligan did not prove that the Town and the other defendants were aware of the substance of her protected speech before discharging her.*

Further, the Circuit Court decided that the defendants offered several legitimate, non-retaliatory reasons for its dismissing Gilligan which she failed to rebut -- there was not enough work at the landfill to justify employing three people; Gilligan was laid off because she lacked seniority; and she did not have the commercial driving license necessary to perform an essential job.

While Gilligan established a prima facie case, raising a presumption of retaliatory discharge, the Town overcame this presumption by offering legitimate, non-retaliatory reasons for her termination. Gilligan was then required to rebut this by demonstrating that the Town’s explanation was pretextual.

In the opinion of the court, Gilligan failed to produce sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false.... Accordingly, it affirmed the district court’s granting the Town’s motion for summary judgment in its favor.

Concerning defamation

Another aspect of the case involved Gilligan’s complaint that she had been defamed. Here the court ruled that “an employee may have a protectable liberty interest [w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him.”

Such an interest is implicated if [he or] she is dismissed based on charges that impose a stigma, or other disability, that prevent her from taking advantage of other employment opportunities. Such a stigma may be shown by proving that the statements will result in public opprobrium and damage to the employee’s reputation.

The circuit decided that the district court correctly found statements and rumors underlying Gilligan’s complaint did not satisfy the “stigma plus standard” followed in the Second Circuit. This standard requires a concurrent temporal link between the defamation and the dismissal.

In dismissing this element of Gilligan’s appeal, the court said that the statements were required to have been made close proximity to Gilligan’s separation and Gilligan failed to establish the statements were made concurrent with her layoff or the failure to rehire her.

While apparently not an issue in this appeal, if there was publication of the statements Gilligan alleged were stigmatizing by the Town, she probably could have demanded a name-clearing hearing.

A name-clearing hearing is available to a person, typically a temporary, provisional or probationary employee, who although lawfully terminated from his or her public employment, claims that the action disparaged his or her reputation in the community or adversely affected his or her ability to secure alternative employment.

In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.

Prevailing at a name-clearing hearing, however, would not have resulted in the employee’s having any claim to reinstatement or damages.

* Gilligan testified she told no one of the substance of her grand jury testimony prior to her testifying in open court at the Burt trial in April 1996. Gilligan was discharged in February 1996, two months before her in-court testimony.
NYPPL

Attorneys, Arbitrators, Consultants, Expert Witnesses

Attorneys, Arbitrators, Consultants, Expert Witnesses
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NYPPL readers often ask for the name of a professional to handle a personnel, retirement, civil rights or other employment related matter. If you or your firm is interested in being listed in NYPPL’s directory of professionals, send an e-mail to publications@nycap.rr.com with the word “Directory” as the subject and the details will be e-mailed back to you.
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The law of defamation in New York

The law of defamation in New York
Source: New York State Bar Journal

Mitchell H. Rubinstein, Adjunct Professor at the New York Law School and St. John's University - School of Law and a frequent contributor to NYPPL, has written an article entitled A Peek at New York Defamation Law that has been published by the New York State Bar Journal [82 N.Y.S. Bar J. 58 (Nov./Dec. 2010)],

This article is a primer on the law of defamation in New York. The author discusses the definition of defamation, litigation issues involving pre-complaint disclosure, defenses such as truth and opinion as well as the different types of privileges that may be applicable.

You can download the article from Professor Rubinstein's SSRN page [Publication #18] at no charge, here.

Lack of a transcript of a disciplinary arbitration not fatal to confirming the arbitrator’s award

Lack of a transcript of a disciplinary arbitration not fatal to confirming the arbitrator’s award
Matter of Jordan v Human Resources Admin. City of New York, 2010 NY Slip Op 08575, Decided on November 16, 2010, Appellate Division, Second Department

The Appellate Division ruled that Jerome E. Jordan failed to establish any grounds for vacating the arbitration award, including his argument that “under the circumstances here, the fact that the arbitration hearing was not transcribed did not provide a basis for vacating the arbitration award.”

N.B. In some instances a contract disciplinary procedure set out in a collective bargaining agreement provides that party may elect to have a transcript of the disciplinary arbitration hearing taken. Typically the cost of making a transcript of the hearing is at the requesting party’s own expense and frequently the CBA requires that the party requesting the transcript provide a copy to the arbitrator and the other party.

In contrast to a disciplinary arbitration, where the arbitrator makes the final determination, Civil Service Law §75 not only requires that a transcript of the hearing be made, it also requires that a transcript of the hearing be provided free of charge to the employee.

Further, a hearing officer or panel submits a report and a recommendation as to the penalty to be imposed to the appointing authority and it is responsibility of the appointing authority to conduct an independent review of the facts before rendering its decision.

In Ligreci v Honors, 162 AD2d 1010, the Appellate Division found that the appointing authority erred by making a determination in a disciplinary action before receiving the transcript of the hearing. Further, the courts have held that the failure to include transcript of the disciplinary hearing in a judicial challenge to the disciplinary determination or penalty imposed bars any “meaningful appellate review.”

Similarly, in a disciplinary action pursuant to, and consistent with, §3020-a of the Education Law, 8 NYCRR 82-1.11(c) provides that the Commissioner of Education is to arrange for “the preparation of a hearing transcript by a competent stenographer and shall compensate the stenographer for the cost of preparing the transcript and copies thereof for the hearing officer, each panel member, the department, the employee and the board.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08575.htm
NYPPL

Disciplinary procedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules

Disciplinary procedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules
Gordon v Town of Queensbury, App. Div., 256 AD2d 784

Michael Gordon was terminated from his position as a motor equipment operator by the Town of Queensbury before he completed his probationary period. He challenged the town’s action, contending that the town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission and thus his termination was made “in bad faith.”

Rule XIV.5 of the Warren County Civil Service Commission requires that “a probationer whose services are to be terminated for unsatisfactory performance receive written notice of such termination at least one week prior thereto.”

Here, however, the Appellate Division decided that “the disciplinary provisions” set out in a collective bargaining agreement negotiated pursuant to the Taylor Law trumped the Commission’s rules. In its analysis of the case, the court pointed out that:

1. A county civil service commission has the authority to promulgate rules for the “conditions and extent of probationary service” which [when filed] have the force and effect of law.

2. “A violation of such rules may be sufficient to trigger a trial on the issue of bad faith.”

3. The former employee “bears the burden of presenting competent proof that his or her dismissal was made in bad faith.”

But, the court said, “it is equally true ... that the disciplinary procedures set forth in a collective bargaining agreement may be substituted for statutory procedures, in which case an employee is ‘entitled to no more procedural protections than those expressly afforded him [or her] under the collective bargaining agreement.”

The Appellate Division said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining agent, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.

Also noted in the opinion was the fact that “it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons absent proof that such discharge was for a constitutionally impermissible reason or in violation of statutory, decisional law, or in bad faith.

Since Gordon “failed to tender proof sufficient to raise a triable issue of fact in this regard,” the court decided that no hearing was required concerning the Town’s motivation in discharging him from the position and dismissed the appeal.
NYPPL