Arbitrators generally permitted independent recourse to third-party sources when necessary to confirm technical information

Arbitrators generally permitted independent recourse to third-party sources when necessary to confirm technical information
Matter of Watt v Roberts, 2010 NY Slip Op 09171, decided on December 14, 2010, Appellate Division, First Department

An arbitration panel selected by the Transport Workers Union of America, Local 100 and the New York City Transit Authority and the Manhattan and Bronx Surface Transit Operating Authority granted a 3% wage increase to employees of the Authorities and capped the formula for employees' contributions toward health insurance costs.

The award was subsequently confirmed by Supreme Court, which denied the Authorities’ Article 75 motion to vacate the award. The Appellate Division affirmed the lower court’s ruling.

The Authorities had objected to the arbitration panel's references to certain matters outside the hearing record, including the MTA's 2010 Preliminary Budget and July Financial Plan and matters reported in newspaper articles. The Appellate Division, however, ruled that this did not constitute "corruption, fraud, or misconduct in procuring the award" prejudicing the rights of either party and warranting vacatur.

The court noted that arbitrators "often are chosen because of their expertise in a particular area and are generally permitted independent recourse to third-party sources when necessary to confirm technical information." In this instance, said the Appellate Division, the arbitrators did not purport to rely on matters outside the record in setting the award, but acknowledged and referred to developments known to the parties and widely reported.

In effect, the court appears to have equated the arbitration panel’s consideration of “third-party sources” equivalent to it taking “judicial notice” in a legal action. West's Encyclopedia of American Law defines “judicial notice” as “A doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09171.htm

The statute of limitations for initiating a lawsuit is not extended by the individual’s pursuing his or her administrative remedies

The statute of limitations for initiating a lawsuit is not extended by the individual’s pursuing his or her administrative remedies
Kahn v New York City Dept. of Educ., 2010 NY Slip Op 09168, decided on December 14, 2010, Appellate Division, First Department

Leslie Kahn, a probationary social worker, was given an unsatisfactory evaluation and was not given a “denying her a Certification of Completion of Probation.” She was then terminated from her position and advised that she was entitled to administrative review under the relevant collective bargaining agreement.

Kahn filed an administrative appeal. An administrative hearing was held. The denial of a “Certification of Completion of Probation” was affirmed and Kahn initiated a lawsuit challenging the determination.

Although Kahn had not filed a “notice of claim” pursuant to Education Law §3813(1), the Appellate Division said that such an omission was not a bar to her action, which was equitable in nature. The court explained that a notice of claim is only required “when money damages are sought, citing Ruocco v Doyle, 38 AD2d 132.

Overcoming this hurdle, however, did not result in the court's considering the merits of Kahn's claim as the Appellate Division then found that her action was time-barred because she filed her Article 78 petition after the statute of limitations had expired.

The court said that a petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination, citing CPLR §217[1]. Significantly, the decisions points out that the controlling statute of limitations is not extended by the individual’s pursuit of administrative remedies.

Assuming that Kahn had initiated a timely Article 78 action and not filed her administrative appeal, the New York City Department of Education would probably have moved to dismiss her petition on the ground that “Kahn had failed to exhaust her administrative remedy.” Presumably the court would have agreed and dismissed her petition.

To avoid such a result, where there is an administrative remedy available, it seems that the aggrieved party should make certain to both file a timely administrative appeal and a timely Article 78 petition.

Kahn also claimed that the Department’s action deprived her of certain civil rights in violation of the Federal Civil Rights Act of 1871, 42 USC §1983.

The Appellate Division said that a claim based on an alleged violations of 42 USC §1983 requires that the proponent show that he or she was deprived of a property or liberty interest without due process of law. However, said the court, a probationary teacher does not have a property right in his or her position nor did the procedure set out in the collective bargaining agreement create such a property interest.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09168.htm

Retirement incentives

Retirement incentives
Bellanca v Grand Island CSD, 275 AD2d 944

Sometimes the retirement incentives promised by the employer are not granted to the individual. This type of situation was the genesis of the Bellanca case.

Peter Bellanca and nine other teachers sued the Grand Island Central School District in an attempt to have the court rescind their having previously decided to elect early retirement. They asked the court to direct their reinstatement to their former positions with back pay and damages.

According to the teachers, the district induced them to accept early retirement by promising them special incentives.

Their complaint: the district did not provide the incentives to them as promised because their final average salary for the purpose of calculating their retirement allowance did not include their severance payment.

Section 431 of the Retirement and Social Security Law provides that after April 1, 1972, the salary base for the computation of retirement benefits paid by a public retirement system of this state shall not include: 1. Lump sum payments for deferred compensation, sick leave, accumulated vacation or other credits for time not worked; 2. Any form of termination pay; 3. Any additional compensation paid in anticipation of retirement: or 4. That portion of compensation earned during any twelve months included in such salary base period which exceeds that of the preceding twelve months by more than twenty per centum.

One of the issues concerned the district’s attempt to have the teachers’ petition dismissed on the theory that they had failed to exhaust their administrative remedies.

According to the district, the teachers should have filed a grievance as provided by collective bargaining agreement. As they had not, district argued that the teachers were barred from litigating claims alleging that the district’s action were negligent or constituted a fraudulent misrepresentation of fact or the parties’ mutual mistake of fact.

The Appellate Division said that none of the teachers failed to exhaust any available administrative remedies. Why not? Because, said the court, their complaints do not allege any violation of the collective bargaining agreement and thus does not fall within the agreement’s definition of a grievance.

Section 207-c administrative hearings

Section 207-c administrative hearings
Doolittle v Broome County, 276 AD2d 863

The Doolittle case involves a relatively unique issue: a hearing officer conducting a Section 207-c hearing* deciding the duration of a workplace stress situation that the employee claimed was the cause of her work-connected disability.

Rita Doolittle, a Broome County correction officer, claimed that she had suffered a disability as a result of work-related stress. She applied for workers’ compensation benefits. One of the issues addressed by the Appellate Division, Third Department, in this round of litigation concerned the determination of the period for which Doolittle was eligible for disability benefits.

According to the decision, the Section 207-c hearing officer had determined that Doolittle was entitled to Section 207-c benefits only for a limited period of time - about eight months in all.

The hearing officer had concluded that any psychological injury suffered by [Doolittle] as a result of workplace stress was limited in time from March 1989 to November 1989 in view of the Doolittle’s expert witness’ testimony that she had subsequently suffered an adjustment disorder arising from the stress of the lawsuit and [the County’s] ... internal investigation ... for approximately six months. Doolittle appealed the hearing officer’s determination.

A comprehensive review of the history of this litigation is set out in an earlier appeal, Matter of Doolittle, 220 AD2d 864. Briefly, in 1988 Doolittle and two female co-workers filed complaints alleging gender discrimination and sexual harassment in the workplace. Broome County commenced an internal investigation of the allegations. In March 1989 Doolittle had a nervous breakdown while on the job and claimed that she was unable to return to work due to this workplace injury.

Doolittle filed an application for workers’ compensation benefits. Broome’s policy was to consider an application for workers’ compensation benefits as a claim or request for both workers’ compensation benefits and for disability benefits under Section 207-c of the General Municipal Law. It, however, controverted [opposed] both applications for benefits on the grounds that Doolittle had not suffered any injury on the job.

Doolittle was terminated due to her absence from work for a period of more than one year, presumably pursuant to Section 73 of the Civil Service Law since the County had controverted her claims.**

Following Broome County’s risk manager rejecting Doolittle’s application for Section 207-c benefits, a Section 207-c hearing was scheduled in accordance with the County’s Local Law 15.

In the course of her federal action, Doolittle claimed that she had experienced another nervous breakdown while she was testifying. A mistrial was declared after the court concluded that she was unwilling or unable to continue. Eventually the federal action was dismissed for failure to prosecute.

Doolittle also alleged that she was unable to testify at the Section 207-c hearing and asked the hearing officer to consider her deposition testimony instead. She also refused to comply with the Hearing Officer’s directive that she submit to an examination by Broome County’s forensic psychiatrist as to her ability to participate effectively in the hearing.

Ultimately the hearing officer determined that Doolittle had sustained a compensable injury on March 8, 1989 and that she was disabled as a result of that injury from that date through November 30, 1989. Accordingly, ruled the hearing officer, Doolittle was entitled to benefits from the County for that discrete time-period only.

After holding that Doolittle’s appeal from the hearing officer’s Section 209-c determination was time-barred, having been filed more than four months after the hearing officer had issued the decision, the Appellate Division elected to note that “if this matter was properly before us, we would find the determination that [Doolittle] was entitled to benefits for a discrete period of eight months to be supported by sufficient evidence in the record.” The court’s rationale:

In view of the nine years between petitioner’s last day on the job in March 1989 and the commencement of the hearing in 1998, it was reasonable for the Hearing Officer to determine the duration of any mental illness or condition that could be deemed attributable to the working conditions in the County Jail in 1989.

In addition, the court also observed that the Hearing Officer could decline to consider otherwise relevant evidence offered by Doolittle because of her refusal to undergo an examination or to provide requested documents.

Significantly, the Appellate Division said that it was not irrational for the Hearing Officer to draw a strong inference against Doolittle as the result of her failure to call her psychologist to provide psychological justification for her failure to participate in the hearing, especially in view of her refusal to cooperate with efforts to inquire into her claim that she was medically unfit to testify.

Unlike a criminal action where the accused had a constitutional right not to testify or be called as a witness, in an administrative action such as a disciplinary hearing or a Section 207-c hearing, the hearing officer may consider the fact that the individual did not testify on his or her own behalf and, moreover, may conclude that such testimony, which would be under oath, would not be helpful to his or her case.

Further, said the court, Doolittle was not prejudiced by the Hearing Officer’s reference to workers’ compensation case law because the Workers’ Compensation Law features a more lenient and more inclusive standard of covered activity than is intended to be covered and compensated under Section 207-c, citing Balcerak v County of Nassau, 94 NY2d 253.

* For information about PELP’s handbook on General Municipal Law§§ 207-a and 207-c go to: http://section207.blogspot.com/

** An employee who suffers a non-permanent work-related injury or disease is to be placed on leave without pay pursuant to Section 71 of the Civil Service Law while an individual unable to work as a result of a non-occupational injury or disease is entitled to leave without pay pursuant to Section 72 of the Civil Service Law. An employee on Section 72 leave may be terminated pursuant to Section 73 of the Civil Service Law after being absent for twelve consecutive months or longer. A person absent on Section 71 leave may be terminated after being absent for a cumulative period of one year.

Union animus

Union animus
CSEA Local 860 v PERB, 276 AD2d 967, Motion for leave to appeal denied, 96 NY2d 704

Michael Holcomb, a probationary employee, was terminated from his employment as a maintenance laborer with the Westchester County Department of Environmental Facilities [DEF]. Local 860 filed charges with PERB alleged that Holcomb’s discharge violated Civil Service Law Section 209-a(1)(a) and Section 209-a(1)(c).

PERB’s Administrative Law Judge [ALJ] determined that the Holcomb’s probationary evaluation and discharge recommendation by his supervisor were tainted by union animus and therefore an improper employer practice. The ALJ noted that in the comment section of the evaluation form, Holcomb supervisor wrote that Holcomb tries to get involved with every bodies [sic] union business even if they don’t want him involved.

Because of deficiencies in the proof, however, the ALJ was unable to conclude whether Holcomb’s employment would have been continued absent union animus. DEF was directed to reinstate Holcomb with back pay and benefits and to perform a de novo evaluation of Holcomb’s job performance after a probationary period, without consideration of his union activities.

PERB affirmed the ALJ’s finding of an improper employer practice but modified the remedy. It directed that Holcomb be reinstated to his former job title in another county agency in which he was to serve a second probationary period and be evaluated as to his performance in his new position. PERB also ruled that its ALJ’s unconditional order of back pay and benefits was inappropriate and decided that Holcomb would be entitled to reimbursement for lost pay and benefits only if the de novo evaluation resulted in a recommendation that his employment be continued.

The general rule in cases alleging improper motivation based on union animus is that the employee must demonstrate a prima facie case of such motivation. Once this is done, the burden of persuasion shifts to the employer to establish that its actions were motivated by legitimate business reasons.

The Appellate Division said that if an employer’s action was motivated by anti-union animus, it is irrelevant ... whether or not cause for the employer’s action in terminating [the employee] actually existed, citing Civil Service Employees Association, Local 1000 v New York State Public Employee Relations Board, 267 AD2d 935, 937. Where, said the court, it has been established that an improper practice led to the termination of the employee, PERB has directed “make whole relief,” including reinstatement with an unconditional award of back pay and benefits.

Finding that PERB concurred with the determination of its ALJ that Holcomb’s termination was unlawful, the Appellate Division concluded that “it is evident that PERB found that [Holcomb] had met [his] burden of establishing prima facie evidence of improper motivation.”

Accordingly, the burden then shifted to DEF to show that its actions were founded on legitimate business concerns. DEF had to present evidence that Holcomb’s poor job performance justified his discharge.

As the ALJ held that the performance evaluation that precipitated the discharge was tainted by union animus, which rendered it impossible to determine whether Holcomb’s employment would have been continued absent the evaluation, DEF clearly failed to meet its burden.

The bottom line: Since DEF did not establish that Holcomb would have been discharged for reasons unrelated to union animus, it was unreasonable for PERB to have provided a remedy that penalized the employee for the employer’s failure of proof and thus Holcomb was entitled to an unconditional award of back pay and benefits.

Failure to serve notice of an appeal to the Commissioner of Education as set out in the Commissioner’s regulations a fatal procedural defect

Failure to serve notice of an appeal to the Commissioner of Education as set out in the Commissioner’s regulations a fatal procedural defect
Matter of Blake v Mills, 2010 NY Slip Op 09057, Decided on December 9, 2010, Appellate Division, Third Department

Shango Blake, a principal in the New York City School District, was charged with 14 counts of misconduct. An arbitration hearing was held pursuant to a collective bargaining agreement and Education Law §3020(3), following which the arbitrator found Blake guilty of misconduct and recommended that petitioner's employment be terminated.

After the Chancellor of the New York City Department of Education implemented the penalty recommended, Blake attempted to appeal the Chancellor's decision to State’s Commissioner of Education by serving copies of the appeal papers on a clerk in the Chancellor's office and on an administrator in the community school district superintendent's office.

The Commissioner rejected Blake’s appeal, noting that he had not complied with the service requirements for appeals to the Commissioner from decisions of the Chancellor.

The Appellate Division sustained the Commissioner’s dismissal of Blake’s appeal based on his finding of “improper service.” The court observed that “In disciplinary matters governed by Education Law §3020(3), appeals to the Commissioner must be instituted by "effecting personal service of a copy of the appeal . . . upon: (1) the chancellor, or a person designated to accept service on behalf of the chancellor; and (2) the community school district superintendent who initiated the arbitration proceeding, or a person in the office of such superintendent who has been designated to accept service."*

As Blake did not “effect personal service upon the Chancellor” nor upon the New York City Law Department, "the exclusive agent designated to accept service on behalf of the Chancellor," the Appellate Division held that Blake’ failed to comply with the applicable regulation, 8 NYCRR 281.6, and thus the Commissioner's dismissal of his administrative appeal for such defective service was neither arbitrary nor capricious nor was it an error of law.

* Blake did not show that the person served in the community school district superintendent's office was specifically designated to accept service on the superintendent's behalf, thus such service was defective.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09057.htm

Ordering worker to report to agency’s medical clinic for an examination does result in liability if the employee’s injury is exacerbating as a result

Ordering worker to report to agency’s medical clinic for an examination does result in liability if the employee’s injury is exacerbating as a result
Bonomonte v City of New York, 2010 NY Slip Op 09165, Decided on December 14, 2010, Appellate Division, First Department

Dominic Bonomonte, a New York City Sanitation employee was on sick leave due to surgeries to his arm. He slipped and fell outside his home on his way to a mandated doctor's appointment at the Sanitation Department's clinic, exacerbating of his injuries.

Bonomonte sued, contending that his fall was a foreseeable consequence of the Department’s negligence in ordering him to the clinic at a time when it should have been aware that he had been directed by his physician not to travel.

Supreme Court dismissed his petition and the Appellate Division affirmed the lower court’s determination.

The Appellate Division said that “Dismissal of the complaint was warranted, since there was no duty flowing from [the Department] to [Bonomonte],” citing Matter of New York City Asbestos Litig., 5 NY3d 486.

The court explained that “Contrary to Bonomonte’s] contention, a duty was not created by the fact that [Department’s] clinical supervisor had ordered [Bonomonte] to travel to the clinic or face possible termination or suspension of employment and medical benefits.”

Further, said the court, the evidence fails to establish “proximate cause,” as the directive that Bonomonte report to the clinic merely furnished the occasion for the accident.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09165.htm

Tenure by estoppel

Tenure by estoppel
Young v Cashin, 275 AD2d 747, Motion for leave to appeal denied, 96 NY2d 706

A New York City Assistant School Principal, Joseph Young, was terminated from his position.

Contending that he had attained tenure by estoppel, Young sued, seeking a court order reinstating him to his former position. If effect, Young argued that as a tenured employee he could not be summarily terminated from his position.

The City, on the other hand, claimed that it had terminated Young while he was still a probationary employee and thus he never had attained tenure as an assistant principal. Accordingly, said the city, he was not entitled to any pretermination hearing. A State Supreme Court judge agreed with the City’s argument and dismissed Young’s petition.

The Appellate Division affirmed the lower court’s ruling, pointing out that tenure by estoppel may be acquired when a school board accepts the continued services of a probationary teacher or an administrator, and fails to take the action required by law to grant or deny tenure before the expiration of the probationary term.

The fatal omission in Young’s case, it appears, was that he failed, or was unable, to show that the City had accepted his services as an assistant principal -- i.e., he was continued in the position of assistant principal -- after his probationary term expired.

Termination during a probationary period

Termination during a probationary period
Scott v Workers’ Compensation Board, 275 AD2d 877

The Scott case demonstrates the general rule that an individual who has been permanently appointed to a position and who is required to serve a probationary period may be terminated without notice and hearing any time after he or she completes the minimum period and prior to the end of the maximum period of probation.

Michael Scott was permanently appointed as a compensation claims referee by the Workers’ Compensation Board. His appointment was subject to a probationary period ranging from 26 to 52 weeks. Prior to the completion of his probationary period, however, Scott was terminated for unsatisfactory job performance ratings in five out of seven applicable categories on his final probationary evaluation.

Scott challenged his dismissal, contending that his termination was arbitrary, capricious and motivated by bad faith. The Appellate Division sustained the dismissal of his petition, commenting that:

Absent proof that his discharge was for a constitutionally impermissible purpose, in violation of applicable law or made in bad faith, [Scott], a probationary employee, was subject to dismissal from his employment without explanation or a hearing.

Further, in the event there is a substantial question as to whether the discharge was due to reasons unrelated to work performance sufficient to justify a court considering such a petition, the individual bears the burden of proof and must present competent proof that the dismissal was motivated by an improper purpose or bad faith.


According to the ruling, Scott’s allegation of bad faith was defeated by the Board’s showing that it complied with its obligation to periodically advise Scott of his progress after observing his conduct and to ultimately provide him with a written probation evaluation at least two weeks prior to the completion of the probationary period, as well as written notice at least one week prior to the effective date of his discharge.

Further, the court ruled, more favorable progress reports that Scott received prior to the final unfavorable evaluation were not required to be furnished to him in writing and did not raise a sufficient factual issue as to the allegations of bad faith on the part of the Board.

On the merits of Scott’s allegations, the Appellate Division found that his termination was not motivated by bad faith on the basis of (1) his final probationary evaluation and (2) the affidavits submitted by the Board to the court indicating his inadequate understanding of the Workers’ Compensation Law, (3) his failure to respond to additional training to address this deficiency, (4) his improper conduct in requesting transportation from attorneys and (4) his posing inappropriate questions to a witness.

However, there may be other factors that could affect the rights of a probationary employee.

In Gordon v Town of Queensbury, 256 AD2d 784, the Appellate Division held that the probationary rules set out in a collective bargaining agreement trumped the probationary rules set in the regulations of the responsible civil service commission.

The court rejected Michael Gordon’s claim that his termination by the Town of Queensbury before he completed his probationary period was made in bad faith because the Town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission.

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

In contrast to probationary periods flowing from appointment to a position, an individual may be given a disciplinary probation in connection with the resolution of a disciplinary action initiated pursuant to a collective bargaining agreement.

While such a probationary period may be general in nature, i.e., the individual is treated as a new employee for the purposes of probation, sometimes there are specific elements of conduct set out in the disciplinary award as to the terms and conditions of the probationary period. Such terms and conditions are controlling, as is demonstrated by in the Taylor ruling by the Appellate Division.

Taylor v Cass, 505 N.Y.S.2d 929, is an example of the impact of such terms and conditions set out in a disciplinary probation award and the limitations placed on the discretion of the appointing authority to terminated an individual serving a disciplinary probation. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed during his disciplinary probation period.

According to the ruling, under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was adversely affected by his intoxication on the job during the next six months.

Taylor, however, was subsequently terminated without a hearing for failing to give a fair day’s work and sleeping during scheduled working hours. Nothing was said as to his being intoxicated on the job with respect to his dismissal as a probationary employee.

Taylor sued, challenging his dismissal. He won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

Workers’ compensation leave

Workers’ compensation leave
Sanders v NYC Human Resources Administration, 275 AD2d 873

Lavern Sanders, a probationary employee, filed an application for workers’ compensation benefits. She also asked for a leave of absence, based upon a physician’s note directing her to cease working. Eventually her leave request was approved through September 1992.

On September 8, 1992, Human Resources sent Sanders a letter advising her that her leave of absence had expired on September 8, 1992 and that any absence subsequent to that date was unauthorized. Another letter advised her that the city had decided to controvert her workers’ compensation claim. In effect, the city said that it did not believe that Sanders had been injured while performing her duties.

According to the decision, Sanders never received these letters because they had been returned to the city as unclaimed “due to the failure to specify [Sanders’] complete address on the envelopes.” Finally, on December 2, 1992, Sanders found out that she had been terminated by the city.*

However, when Sanders learned that the city had controverted her claim for workers’ compensation benefits, she appealed to the Workers’ Compensation Board. Her complaint: she had been terminated as retaliation for her having filed a workers’ compensation claim. Terminating an individual because he or she had filed a workers’ compensation claim, she argued, violated Section 120 of the Workers’ Compensation Law.

As evidence of such retaliation, Sanders alleged that her employer began fabricating disciplinary charges against her immediately following her application for [workers’ compensation] benefits.

Ultimately the Workers’ Compensation Board decided that Sanders failed to sustain her burden of demonstrating a prima facie case of discrimination and dismissed her complaint. The Appellate Division affirmed the Board’s determination.

As to approving other leave for Sanders, the decision states that a union official’s testimony indicated that the city generally does not authorize leaves of absences for probationary employees and will terminate any such employee who is on unauthorized leave so that a replacement may be hired to fill the position. Presumably, the testimony concerning the city’s not authorizing leave in such cases refers to a leave without pay such as leave pursuant to Section 72 of the Civil Service Law.

While Section 71 leave must be approved for employees injured on the job in situations where the injury or disability does not permanently incapacitate the individual from performing the duties of the position, Section 72 authorizes the approval of leaves without pay in the event the individual’s disability is not work-connected.

* Presumably Sanders was not placed [or continued] on workers’ compensation leave as mandated by Section 71 of the Civil Service Law in view of the city’s controverting her claim that she had suffered a work-related injury.

Dismissal of charges in the course of a Section 75 disciplinary hearing

Dismissal of charges in the course of a Section 75 disciplinary hearing
Source: Reader's inquiry

From time to time, a reader will submit a question concerning a public personnel law issue. One recent question viewed as being of general interest to the readers of this BLOG:

"Where is the authority to dismiss administrative disciplinary charges during the hearing process found?"

NYPPL does not believe that a hearing officer has any authority to "dismiss" a Section 75 disciplinary charge or specification.*

Although the appointing authority may elect to "withdraw" a charge or specification, we know of no such authority being vested in a Section 75 hearing officer unless the appointing authority, itself, is serving as the hearing officer or body and so acts.

The authority of a hearing officer is limited in the context of a Section 75 disciplinary action. The hearing officer may either sustain some or all of the charges and specifications served on the employee or find that there was no substantial evidence to prove all or some of the charges and specifications so served.

As to the actual act of dismissing charges, as a practical matter the hearing officer would simply make findings to the effect that the appointing authority has not sustained its burden of proof and recommend that the charges be withdraw or dismissed, with or without prejudice, at the discretion of the hearing officer or find the employee "not guilty" of the charge[s].

As the doctrine of "double jeopardy" does not apply in administrative disciplinary actions, unless the appointing authority elects to dismiss the disciplinary charges "with prejudice," it may subsequently file charges based on the same event[s] on the employee.

* In contrast, an arbitrator or arbitration panel may grant a motion to dismiss charges and specifications where the final determination is to be made by the arbitrator or an arbitration panel as is the case in a disciplinary proceeding held pursuant to Education Law Section 3020-a. Any challenge to such action would be via an appeal pursuant to CPLR Article 75 by the appointing authority to vacate the award, in whole or in part.

Applying for disability retirement benefits

Applying for disability retirement benefits
Miata v McCall, 277 AD2d 590

Joseph Miata, a Long Island State Parks and Recreation Commission police officer, filed an application for performance of duty disability retirement benefits after he suffered an ankle injury as the result of his tripping while leaving work on August 24, 1995.

After conducting a hearing during which conflicting expert testimony was presented, McCall denied Miata’s application for benefits. Miata appealed, contending that the hearing officer’s decision was not supported by substantial evidence.

The Appellate Division, Third Department, dismissed the appeal. It viewed the testimony by Stuart Kandel, an orthopedic surgeon, that when he examined Miata he concluded that there were no objective abnormalities inasmuch as he noted no swelling, limping, instability nor restriction of motion in comparison to his right ankle to constitute the required substantial evidence.

While Kandel diagnosed Miata as having a sprained ankle and, in his opinion, not incapacitated from the performance of his duties, Miata’s expert testified to the contrary. Situations involving conflicting expert medical opinion present a credibility issue for McCall to resolve. The fact that the record could support a contrary conclusion did not require the court to vacate McCall’s determination.

Absence from an assigned post

Absence from an assigned post
Gamma v City of Newburgh, 277 AD2d 236

Absence from one’s post is a serious matter as former Newburgh police officer Stephen J. Gamma learned.

Gamma was found guilty of charges that he violated both supervisory instructions and the Rules and Regulations of the Department by leaving his duty post without the approval of a superior in his chain of command. As a result, Gamma was terminated.

In response to Gamma’s appeal, the Appellate Division decided that there was substantial evidence in the record to support the hearing officer’s findings. As to the penalty imposed, termination, the court said that [t]the penalty of dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.

The court said that a police force is a quasi-military organization demanding strict discipline and in matters involving police misconduct, great deference is to be accorded to determinations regarding the appropriate discipline of its members.

Seeking class action relief in arbitrations

Seeking class action relief in arbitrations
Correction Officers Benevolent Association v City of New York, 276 AD2d 394

May an arbitrator grant relief to a class of employees if but a single individual filed the grievance?

This was the critical issue before the Appellate Division, First Department when the Correction Officers Benevolent Association attempted to confirm an arbitration award interpreting a clause in the parties’ collective bargaining agreement between the Association and the City of New York providing for military leave with pay. The City filed a cross motion seeking to have the court rescind the award.

The Appellate Division confirmed the award, holding that the arbitrator did not exceed his authority in awarding class relief.

Why was this a class action? Because, said the court, the request for arbitration, jointly submitted by the parties, expressly framed the proceeding as a Class Action grievance due to the fact that numerous employees represented by the Association were subject to call for military duty and were therefore affected by the manner in which respondents applied the clause in the case of the individual who filed the grievance.

The opinion suggests that the City could have withdrawn the request for class relief, but never did so. Although the issue framed by the parties did not refer to the class aspect of the submission, the remedy sought was expressed in open-ended terms that did not limit the arbitrator’s power to grant any specific relief. As the arbitrator’s interpretation of the clause in dispute was not totally irrational, it was properly confirmed.

CSL §75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are served

CSL §75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are served
Matter of Nygard v County of Warren, 2010 NY Slip Op 09060, decided on December 9, 2010, Appellate Division, Third Department

Thomas Nygard, a Warren County deputy sheriff, was served with disciplinary charges alleging seven acts of misconduct pursuant to §75 of the Civil Service Law. Such charges included alleged acts of misconduct that occurred while Nygard was “off-duty.”

Ultimately the §75 Hearing Officer found Nygard guilty of four of the charges. The Hearing Officer, considering the results in another recent disciplinary matter involving Nygard,* recommended termination as the penalty to be imposed by the appointing authority.

Nathan H. York, the Warren County Sheriff, Nathan H. York, found that the record supported sustaining one additional charge, for a total of five, and terminated Nygard from his position.

Nygard appealed, contending that his “statutory rights” had been violated because his request to adjourn an administrative investigation that ultimately lead to disciplinary charges being filed against him until he could have an attorney present was rejected. Accordingly, Nygard argued, “all information gleaned at the inquiry should have been excluded from the subsequent disciplinary proceeding.”

The Appellate Division disagreed, noting that Civil Service Law §75(2) establishes two different requirements for representation depending on the stage of the administrative disciplinary proceeding.

First, said the court, Subdivision 2 provides that during questioning of an employee who "appears to be a potential subject of disciplinary action," the employee has a right to have a union representative present. If the appointing authority fails or refuses to permit the individual to have his or her union representative present, Subdivision 2 states that the failure to afford this right to the employee bars the use of any statements made, or evidence derived, in the course of the initial questioning in the absence of such representation from being used in the disciplinary hearing.

However, noted the Appellate Division, there is a “second stage” in the disciplinary process addressed in §75(2) that expands the employee’s right to representation to include the right to representation by an attorney** once disciplinary charges have been filed against an individual and a scheduled hearing.

The Appellate Division ruled that in Nygard’s case, the administrative inquiry constituted a “stage one questioning” at which he had a union representative present. Accordingly, said the court, the relevant statutory requirement was satisfied and “the record reveals no violation of proper procedures.”

Nygard also contended that his off-duty conduct was improperly considered as a basis for disciplinary action. The court disposed of this argument by pointing out that “An employee may be disciplined for actions occurring while off-duty, citing Villanueva v Simpson, 69 NY2d 1034.

Finding that substantial evidence supported each of the five disciplinary charges sustained by the Sheriff, the Appellate Division rejected Nygard’s claim that dismissal was too harsh a penalty in this instance, finding that termination was not "so disproportionate as to be shocking to one's sense of fairness."***

Here, said the court, the penalty did not rise to that level given the nature of the charges sustained, “particularly when considered together with the fact" that only a few months earlier [Nygard] had been disciplined for a similar off-duty incident.

* In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if 1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and 2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

** §75(2) provides that in disciplinary hearing stage of the process, in contrast to investigatory stage of the procedure, the hearing officer shall “upon the request of the person against whom charges are preferred, permit him [or her] to be represented by counsel or by a representative of a recognized or certified employee organization….”

*** The so-called Pell Doctrine, Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09060.htm
.