School administrators did not violate a student’s Constitutional right to “free speech” when it disciplined her for harassing a fellow student via after-school posting on the Internet

School administrators did not violate a student’s Constitutional right to “free speech” when it disciplined her for harassing a fellow student via after-school posting on the Internet

Kowalski v. Berkeley County Schools, United States Court of Appeals, Fourth Circuit, Docket #10-1098

A student sued West Virginia’s Berkeley County School District contending that it had violated her Constitutional right to free speech when it suspended her for creating a MySpace page ridiculing a fellow student. A federal District Court judge granted the school district’s motion for summary judgment, which ruling was affirmed by the Fourth Circuit U.S. Circuit Court of Appeals.

In this 42 USC 1983 action the court found that the student’s after-school “conduct was sufficiently connected to the school environment so as to implicate the [district’s] recognized authority to discipline speech which materially and substantially interferes with the requirements of appropriate discipline in the operation of the school and collides with the rights of others.”

The full text of the decision is posted on the Internet at:

http://caselaw.findlaw.com/us-4th-circuit/1575495.html

Retiree's "double dipping" for retirement benefits prohibited

Retiree's "double dipping" for retirement benefits prohibited

Williams v McCall, 283 AD2d 808

John Williams, Jr. initially joined the New York State and Local Employees' Retirement System [ERS] in 1962 while employed by Creedmoor State Hospital. In 1969, he became a member of the New York City Police Department and became a member of the New York City Police Pension Fund [Fund]. In 1997 Williams began working full time for both the Police Department and Creedmoor simultaneously. This continued until he retired from the Police Department in 1990.

In 1990 Williams began to receive retirement benefits from the Fund while continuing to work full time at Creedmoor. He retired from Creedmoor in 1995 and began receiving benefits from ERS as well.*

Ultimately, ERS ruled that for purposes of calculating William's ERS retirement benefits, his employment at Creedmoor after July 3, 1990 could not be counted as service credit because he was receiving pension benefits from the Fund at that time. Williams appealed this ruling.

The Appellate Division affirmed the Retirement System's decision. The court said that it is well settled that “[a]s a general rule, an individual who is retired from service with the State, a municipal corporation or a political subdivision of the State may not engage in the practice known as 'double dipping', where [such the individual] simultaneously receives pension benefits and compensation for post-retirement public employment or service,” citing Incorporated Village of Nissequogue v New York State Civil Service Commission, 220 AD2d 53.

The Appellate Division ruled that because Williams began receiving pension benefits from the Fund in 1990 and continued to receive them during his employment at Creedmoor, the Comptroller had a rational basis for denying him service credit for this time period in calculating his ERS retirement benefits. The decision also points out that even if Williams “was specifically authorized to continue his post-retirement public service (which he was not on this record),” Retirement and Social Security Law Section 213(b) specifically prohibits the grant of service credit for such post-retirement employment.

The Appellate Division said that the fact that Williams worked for Creedmoor before and during his employment with the Police Department “does not compel a contrary conclusion.”

* Williams answered “no” in response to the question: are you a member of “any other Public Retirement System in the State” when he filed his application for ERS benefits in 1995.

Selecting an individual for promotion because of a romantic relationship does not constitute discrimination of the basis of gender

Selecting an individual for promotion because of a romantic relationship does not constitute discrimination of the basis of gender

Fella v Rockland County, 297 AD2d 813

Rockland County Director of Hospitals Peter J. Fella was charged with sexual harassment. Found guilty, the County Executive imposed the penalty of suspension without pay for thirty days. Fella sued in an effort to have County Executive's action annulled.

The harassment charge had been filed by Jovita Catalan, a county employee. Her complaint alleged that Fella appointed Anne Gonzales, with whom he had a “romantic relationship,” to the position of Assistant Director of Nursing.

Catalan filed her complaint pursuant to the Rockland County Equal Employment Opportunity Policy [RCEEOP] alleging she was subjected to “discrimination, harassment or retaliation” on January 4, 2000, the day that the Fella told her that she would not be appointed to the Assistant Director position. Catalan contended that Gonzales was less qualified than she was and that Gonzales was appointed because she was Fella's girlfriend.

After an investigation, the Rockland County Director of Employee Rights and Equity Compliance concluded that Fella's promotion of an employee with whom he had a personal relationship created a hostile work environment.

Supreme Court Judge Nelson ruled that Fella’s conduct in promoting his paramour may have constituted poor judgment, and may subject him to discipline on other grounds, but did not constitute sexual discrimination prohibited by the RCEEOP. As the County failed to establish that this single instance of alleged favoritism based on a sexual relationship was punishable under the RCEEOP, Supreme Court annulled the determination and remitted the matter to the County for further proceedings.

The Appellate Division affirmed the lower court’s ruling, observing that the relevant provisions of the RCEEOP:

Prohibits discrimination in hiring and promotion on the basis of gender or sex or sexual orientation;

Encourages advancement for qualified individuals regardless of gender or sex or sexual orientation; and

Provides that employment decisions shall be made on the basis of merit, fitness, and equality of opportunity and without discrimination on the basis of gender or sex or sexual orientation.

The RCEEOP also states that sexual harassment is a form of employment discrimination based on gender.*

The Appellate Division said “that an isolated act of preferential treatment of another employee due to a romantic, consensual relationship” does not constitute sexual discrimination under either federal or State Law. In the words of the court, Preferential treatment, favoritism, and cronyism, while unjust and unfair, do not constitute sexual discrimination.

 

Noting that there was no evidence that Fella discriminated against employees on the basis of gender or that he made unwelcome sexual advances or demands on employees, the finding that Fella created a hostile work environment in violation of the RCEEOP was ruled arbitrary, capricious, and without a rational basis. The Appellate Division concluded that compliant was properly annulled by the Supreme Court Judge.

In another “favoritism case,” DeCintio v Westchester County Medical Center, 821 F2d 111, cert. denied, 484 U.S. 965, the U.S. Circuit Court of Appeals, 2nd Circuit, decided that the selection of a woman romantically involved with her supervisor for promotion did not constitute unlawful gender discrimination within the meaning of Title VII insofar as her male co-workers were concerned.

In DeCintio, male employees sued, complaining that their supervisor had tailored the job requirements for the position in such a way as only his woman friend could qualify. This, they argued, was discrimination on the basis of sex within the meaning of Title VII.

The Circuit Court decided that as any female employee interested in the job would have been in the same position as the male employees, there was no sex discrimination involved. It was the “special relationship” between the supervisor and his woman friend rather than sex discrimination that had resulted in the preferential treatment to which the male employees had objected. While unfair, said the Court, the supervisor's actions did not constitute a violation of Title VII.

* The RCEEOP defines sexual harassment as unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which "has the purpose or affect of unreasonably interfering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment."

Undertaking background investigations may be critical in defending “negligent hiring” claim

Undertaking background investigations may be critical in defending “negligent hiring” claim

Murray v SUNY Research Foundation, 283 AD2d 995

The Murray case illustrates some of the factors that courts consider in resolving cases involving allegations that the employer was guilty of “negligence” in selecting a particular individual for employment based on an allegation that the employer should have conducted a more intensive investigation of the individual's background than was actually made.

Teresa Murray sued the SUNY Research Foundation [Foundation] and the Rochester City School District [District] after she learned that her son was sexually assaulted over a period of months by an employee of the Foundation.

The Research Foundation had employed the individual to coordinate the Educational Talent Search program in the District's school that Murray's son attended. The alleged sexual abuse took place during regular school hours. Murray's son, however, was not enrolled in the Educational Talent Search program coordinated by the Research Foundation’s employee.

The Appellate Division, Fourth Department, sustained a Supreme Court justice's granting the Foundation's motion for summary judgment. It said that the Foundation satisfied its initial burden by establishing, as a matter of law, that it was not negligent in hiring or retaining the individual, and that Murray failed to raise any issue of fact.

According to the ruling, the Foundation introduced evidence demonstrating that it interviewed the employee extensively and obtained written references prior to its hiring him. Finding that the procedures followed by the Foundation revealed nothing that would lead a reasonably prudent person to suspect that he had “dangerous propensities” to sexually abuse children, the court concluded that the Foundation had “no duty to investigate further” before hiring” the employee. The Appellate Division based its conclusion on the fact that there was no evidence in the record to show that a routine background check would have revealed that the employee had a propensity to harm children.

Another defendant, the Rochester City School District, also asked the trial court to dismiss Murray's complaint against it. Its motion was denied. Sustaining the lower court's ruling, the Appellate Division said the Supreme Court justice properly denied the motion of the District seeking summary judgment dismissing the complaint against it.

The court explained that the District has “the duty to exercise the same degree of care and supervision over the pupils under its control as a reasonably prudent parent would exercise under the same circumstances.” The standard for determining whether this duty was breached: “would a parent of ordinary prudence placed in the identical situation and armed with the same information invariably have provided greater supervision.”

The court rejected the District's claim that it could not be held liable without actual or constructive notice of the employee's behavior. According to the ruling, “the criminal intervention of third parties may, however, be a 'reasonably foreseeable' consequence of circumstances created by the defendant.”

The operative factor here: Murray's son was permitted to meet alone with the coordinator of a program in which he was not enrolled, in a room with a closed door, in violation of school policy.

Employee terminated after ignoring an order to report for a “fit-for-duty” examination

Employee terminated after ignoring an order to report for a “fit-for-duty” examination

DiLauria v Town of Harrison, 285 AD2d 464

Town of Harrison police officer Steven DiLauria was terminated from his position after being found guilty of insubordination following a disciplinary hearing. The Appellate Division sustained his dismissal, finding that the department's determination that DiLauria had disobeyed two lawful orders given to him by Town of Harrison Chief of Police David Hall was supported by substantial evidence

The decision states that Chief Hall had directed DiLauria to report to Lieutenant Michael Kamensky for duty effective December 3, 1999, at 9:00 a.m. Although DiLauria “appeared outside of Lieutenant Kamensky's office on December 3 after 9:00 a.m., he did not report to Kamensky for duty as instructed.”

Kamensky and DiLauria then met with Chief Hall. During the meeting DiLauria if he could have the day off. Chief Hall denied the request and told Lieutenant Kamensky that DiLauria was assigned to him for duty. He then issued an order directing the DiLauria to report for a fit-for-duty examination at 2:00 p.m. that afternoon.

The decision reports that DiLauria responded to these directives by throwing the order on Chief Hall's desk and then “stormed out of the meeting.” Lieutenant Kamensky did not see the DiLauria again on December 3, 1999, nor did DiLauria appear for the fit-for-duty examination as directed.

Based on this record, the Appellate Division said that the penalty of dismissal “is not so disproportionate to the offenses as to be shocking to one's sense of fairness,” noting that DiLauria had previously been suspended for disobeying an order and “police departments are quasi-military organizations requiring strict discipline.

Jurisdiction to resolve an impasse in collective bargaining under the Taylor Law

Jurisdiction to resolve an impasse in collective bargaining under the Taylor Law

Police Benevolent Association v City of New York, 285 A.D.2d 52

In a unanimous ruling, the Appellate Division, Third Department, held that the New York State Public Employment Relations Board [PERB] has exclusive jurisdiction insofar as resolving Taylor Law impasse situations are concerned.

The New York City Police Benevolent Association [PBA] had objected to the New York City Office of Collective Bargaining [OCB] assuming jurisdiction to resolve an impasse in collective bargaining, contending that the Taylor Law, as amended by Chapter 641 of the Laws of 1998 gave the State's PERB exclusive jurisdiction in such cases.

The Taylor Law permits a political subdivision of the State to set up a “mini-PERB” to oversee Taylor Law matters and the City's OCB was established for this purpose. Chapter 641, however, gave PERB exclusive “impasse jurisdiction” with respect to all fire and police departments across the State. The City's attempt to have the courts declare Chapter 641 inconsistent with “home rule” has thus far proved unsuccessful.

The court's rationale: “Chapter 641 does not violate the home rule provision of the State Constitution” since it creates a law of general applicability serving a “substantial state concern” rather than constituting a “special law.” Section 212.3 provides as follows: Notwithstanding any other provision of law to the contrary, the resolution of disputes in the course of collective negotiations as provided by section two hundred nine of this article shall apply to any organized fire department, police force, or police department of any government subject to either subdivision one or two of this section.

Section 212.3, however, permits a recognized or certified employee organization representing law enforcement personnel or firefighters to “opt out” by electing “to continue dispute resolution procedures which existed on the day prior to the effective date of this subdivision” by notifying the appropriate mini-PERB* of this decision in writing.” The PBA did not elect to “opt out.”

The Appellate Division explained that in 1974 the Legislature amended Section 209 of the Civil Service Law to provide for binding impasse arbitration by PERB, but since OCB's procedures already provided for binding arbitration when an impasse was reached between the City and any of its public employee organizations, the City was specifically exempted from this requirement.

Although in 1996 the Legislature attempted to transfer jurisdiction to resolve impasses between the City and the PBA to PERB [Chapter 13, Law of 1996], the courts held that its action violated the “home rule” provision set out in the State Constitution. The Legislature's response to this ruling was to enact Chapter 641.

Observing that “[a]ll parties acknowledge that if Chapter 641 is constitutional, PERB has exclusive jurisdiction over impasse and negotiation issues and [OCB] has jurisdiction only over improper practice disputes under Civil Service Law Section 205(5)(d) and Section 209-a...,” the Appellate Division affirmed the Supreme Court's hold that Chapter 641 was constitutional.

* At one time there were 35 mini-PERBs; only four remain: New York City's Office of Collective Bargaining, and mini-PERBs for the Town of Hempstead; Suffolk County and Westchester County.

.

Including the names of all “necessary parties” in an action is critical

Including the names of all “necessary parties” in an action is critical

Matter of Wheeler, CEd Decision 14,581

This ruling by the Commissioner of Education demonstrates the importance of naming all of the necessary parties in a proceeding before the Commissioner.

An elementary school principal announced that she was going to retire. Adirondack Central School Superintendent Marjorie Kelly transferred the principal then serving at another elementary school, Forestport, to fill the resulting vacancy. Kelly next appointed Ann Bush, a speech teacher, as principal at Forestport. Bush was simultaneously assigned to be the speech teacher, part-time, at Forestport.

Richard Wheeler, President of the Adirondack Central School Administrators' Association, objected to Bush's appointment as a principal with part-time teaching responsibilities rather than as a full-time principal. Wheeler's argument: the district created a new position of “Teaching Principal” at Forestport when it appointed Bush, thereby violating Section 100.2(a) of the Commissioner's regulations [8 NYCRR 100.2(a)].*

The Commissioner said he had to dismiss the appeal because Wheeler failed “to join a necessary party” -- Ann Bush. The Commissioner pointed out that a party whose rights would be adversely affected if the appeal was sustained must be clearly named as a respondent in the caption of the petition and “served with a copy of the notice of petition and petition, to inform the person that he or she should respond to the petition and enter a defense.”

Significantly, the Commissioner rejected the Association's contention that Bush was a party to the appeal because she was a member of the Association.

Were Wheeler to prevail in his appeal, said the Commissioner, Bush's employment as principal at Forestport would “clearly be affected.” Thus Bush is a necessary party to the proceeding and the failure to name her constituted a fatal procedural error.

* 4 NYCRR 100.2 “requires a board of education to employ and assign a full-time principal to each school under its supervision” unless the Commissioner approves a “variance.” 

Involuntary testing for drugs

Involuntary testing for drugs

DiCicco v Wyandanch Volunteer Fire Dept., 284 A.D.2d 459

The Appellate Division, 2nd Department, upheld the Wyandanch Volunteer Fire Department's [WVF] terminating Thomas DiCicco from membership in the Department because he refused to submit to a drug test within 24 hours of his being notified to undergo such a test pursuant to the WVF's random drug-testing policy.

Applying the Pell doctrine [Pell v Board of Education, 34 NY2d 222], the court said the penalty of dismissal is not so disproportionate to the offense as to be shocking to one's sense of fairness.

The Appellate Division also noted that DiCicco was told that he could reapply for membership in WVF in the future.

Concerning an individual's standing to challenge an appointment to a position in the public service in instances where the individual "is not personally aggrieved"

Concerning an individual's standing to challenge an appointment to a position in the public service in instances where the individual "is not personally aggrieved"

Matter of Seidel v Prendergast, 2011 NY Slip Op 06132, Appellate Division, Second Department

Michael Seidel and others [Seidel] joined in filing a petition pursuant of Article 78 of the Civil Practice Law and Rules challenging the action of the Town Board of the Town of Orangetown appointing Kevin Nulty to the position of the town's Chief of Police. Supreme Court of Orangetown, Rockland County, dismissed the petition on the grounds that Seidel “lacked standing” to pursue the action. Seidel appealed.

Essentially Seidel contended that Nulty’s appointment was unlawful because no competitive examination had been held for appointment to the position of Chief of Police.

The Appellate Division sustained the lower court’s dismissal of Seidel’s petition, explaining that “In general, persons seeking to challenge governmental actions must demonstrate that they are personally aggrieved by those actions in a manner ‘different in kind and degree from the community generally,'"

In this instance Seidel and his co-petitioners made no attempt to demonstrate they was aggrieved by Nulty’s appointment. Rather, said the Appellate Divisiont, they claim that they "have standing to challenge unlawful and unconstitutional civil service appointments regardless of whether they are personally aggrieved."

The Appellate Division rejected this theory, holding that while the doctrine of common-law taxpayer standing would excuse such lack of personal aggrievement, that doctrine requires the petitioner to establish that "the failure to accord such standing would be in effect to erect an impenetrable barrier to any judicial scrutiny of legislative action."

As Seidel failed to demonstrate that there was an "impenetrable barrier" to judicial scrutiny of the administrative determination resulting in the appointment of Nulty as the Town's Chief of Police, the Appellate Division concluded that the “Supreme Court properly granted the motions to dismiss the petition on the ground that the petitioners lacked standing.”

Out-of-title work

Out-of-title work

Haubert v GOER, 284 A.D.2d 879

In the Haubert case the Appellate Division, Third Department considered the issue of whether or not the assignment of certain additional duties to an individual, or specific changes in an employee's existing duties, constitutes “out-of-title” work. As the decision demonstrates, it all depends on the nature of the changes and the nature of the positions involved.

Section 61.2 of the Civil Service Law prohibits “out-of-title work.” In addition, no credit is given for out-of-title work in order to qualify for a promotion examination.

Ruth A. Haubert appealed the Governor's Office of Employee Relations' [GOER] denial of her out-of-title work grievance. The grievance arose after the State Department of Health changed its procedures with respect to surveying long-term health care facilities to ensure their compliance with State and federal laws and rules.

Initially the surveys were conducted by teams under the supervision of a Consultant Nurse, grade 24. In late 1996 Health revised its procedure and required various employees in grade 19, 20 or 22 specialized clinician positions to serve as the “team facilitator” on a rotating basis in addition to the designated “facilitator” remaining responsible for his or her primary tasks as a team member.

Claiming that the new role of team facilitator required them to perform out-of-title work, Haubert and other employees filed an “out-of-title” work grievance. The grievance was rejected at all steps and an appeal was filed in Supreme Court. Ultimately, the Appellate Division affirmed the Supreme Court's dismissal of Haubert's petition.

The Appellate Division said that not all additional duties assigned to an incumbent constitute out-of-title work. The question is whether the new duties are appropriate to the employee's titles and, or, are they similar in nature to, or a reasonable outgrowth of, the duties listed in the employee's job specifications.

In this instance, the court decided that based upon “the team concept of the survey work, which required coordination and cooperation among all team members, and the high level of expertise required of petitioners in order to qualify for their titles,” GOER rationally concluded that the obligation of a team facilitator to monitor the team's progress to ensure that the team accomplished its mission in a timely fashion “is appropriate to petitioners' titles and, or, constitutes a logical extension of their duties.” 

Determining seniority in a civil division of the State

Determining seniority in a civil division of the State

Turner v Ulster County, 284 A.D.2d 703

Seniority is the key to layoff rights in the public service. Typically seniority is based on the individual's uninterrupted service with the governmental entity in which the layoff takes place measured from the original date of the individual's permanent appointment in the civil service of that entity, regardless of the jurisdictional classification of the position or positions held by the individual.

Police Captain George B. Turner was laid off when the Town of Ulster abolished his position. Turner contended that he had displacement rights based on his seniority in the classified service and thus he could “bump” Donald H. Short, a lieutenant in the Town Police Department. The County personnel officer, Thomas J. Costello, ruled that Turner did not have displacement rights over Short as Short had more permanent service in the relevant civil division -- the Town of Ulster.

According to the decision, Turner was originally appointed as a Deputy Sheriff by the Ulster County Sheriff's Department on January 16, 1978 and was continuously employed there until November 9, 1990. On that date Turner was appointed to a position in the Town Police Department from a civil service open competitive eligible list. Turner was ultimately promoted to the position of police captain.

Short, on the other hand, had continuously served with the Town Police Department since January 1, 1983, and the Ulster County personnel director determined that he had been appointed as a permanent employee prior to Turner's appointment by the Town.

Ulster County Civil Service Rules and Regulations defines “permanent service,” a key element in determining seniority for the purposes of layoff, as “start[ing] on the date of the incumbent's original appointment on a permanent basis in the classified service.” The rules also provide that “[t]he permanent service of any employee who was transferred from another civil division shall start on the date of his/her original permanent appointment in the classified service in the other civil division [emphasis supplied].”

The Appellate Division said that: It is clear that for purposes of seniority, length of time in service is measured from the date of original appointment on a permanent basis in the classified service of the layoff unit where the abolishment occurs. Since petitioner was appointed to the position of lieutenant in the Town Police Department on November 9, 1990 from an open competitive eligible list, this date of appointment marks the commencement of his service in the classified service in the layoff [sic] unit. There is no merit to petitioner's contention that his original appointment in the classified service occurred in 1978 with his appointment to the Ulster County Sheriff's Department since he did not transfer from the Sheriff's Department to the Town Police Department.

The crux of the matter is the meaning of the term “civil division.” Section 2.8 of the Civil Service Law defines “service of a civil division” to “include all offices and positions in the civil division of any subdivision of the state and the term 'civil division' shall include within its meaning a city.”

The Appellate Division agreed with the personnel officer's determination that the Ulster County and the Town of Ulster are different and separate “civil divisions.” As the Court of Appeals said in Chittenden v Wurster, 152 NY 345, the civil divisions of the State are its counties and its towns and its villages. 

Eligibility for reinstatement from a preferred list to a “different” position

Eligibility for reinstatement from a preferred list to a “different” position

Davis v Mills, 285 A.D.2d 703, affirmed 98 N.Y.2d 120

As a general rule, a preferred list must be used to fill a vacancy for the same title, or a position found to be similar to, the position that gave rise to the creation of the preferred list in the first instance. Clearly the preferred list must be certified to fill vacancies having the same title. The determination of a “similar position” for the purposes of such certification is sometimes a less easy task.

School psychologist Maxine Davis was laid off by the Westport Central School District when the district abolished a school psychologist position. She claimed that she was entitled to be reinstated from the preferred list when the district decided to fill a newly created position of elementary counselor.

Davis argued that “because the majority of the duties that she performed as school psychologist consisted of the counseling and other related duties of the newly created elementary counselor position, the two positions are similar within the meaning of Education Law Section 2510.” Thus, she concluded, if the district wished to fill the newly created elementary counselor position, it was required to use the preferred list created as a result of her being laid off.

The Commissioner of Education disagreed and dismissed Davis' appeal after determining that the two positions were in different special subject tenure areas and required different certifications. The Appellate Division, Third Department, sustained the Commissioner's decision.

The court noted that although the abolished “school psychologist position apparently encompassed the duties of the newly created elementary counselor position, the record establishes that the school psychologist position included additional duties beyond those of the elementary counselor position” and which require “skills that were not necessary for the performance of the more limited duties of the elementary counselor position.”

In addition, said the court, the fact that some of the counseling-related duties of the school psychologist position became the duties of the elementary counselor position does not necessarily make the two positions similar.

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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Removing a member of a school board

Removing a member of a school board

Matter of Lilker, CEd 14,588

Claiming that there were discrepancies between the published board minutes and audio recordings he made of the same board meeting, Stewart S. Lilker asked the Commissioner of Education to remove members of the Freeport Union Free School District Board of Education and the District Clerk from their respective positions.

As a starting point, the Commissioner noted that Lilker's appeal alleged violations of the Open Meetings Law [Public Officers Law Section 107]. Explaining that the State Supreme Court has “exclusive jurisdiction” over such complaints, the Commissioner said any alleged OML violations could not be adjudicated via an appeal pursuant to the Regulations of the Commissioner, 8 NYCRR 275.

However, said the Commissioner, even if he had jurisdiction, he would dismiss Lilker's appeal on the merits because Lilker “failed to establish facts sufficient to warrant the removal of respondents pursuant to the Education Law Section 306.”

A member of the board of education may be removed from office pursuant to Section 306 when it is proven to the satisfaction of the Commissioner that the board member has engaged in a willful violation or neglect of duty within the meaning of the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or the Commissioner of Education.

Lilker, said the Commissioner, failed to meet his burden of demonstrating that he had “a clear legal right to the relief requested” as well as his burden of demonstrating that board members and the district clerk engaged in willful or intentional misconduct warranting removal from office.

The Commissioner said that the alleged inaccuracies and discrepancies between the published minutes and Lilker's audio recordings are of an administrative nature and do not demonstrate any intentional misrepresentation or attempt to falsify board records.

Authority of the arbitrator to fashion a remedy affecting a party found to have violated the terms of the collective bargaining agreement

Authority of the arbitrator to fashion a remedy affecting a party found to have violated the terms of the collective bargaining agreement
Matter of Merrick Union Free School Dist. v Merrick Faculty Assn., Inc., 2011 NY Slip Op 06128, Appellate Division, Second Department

In this CPLR Article 75 action the Merrick Faculty Association, Inc. appealed an order of the Supreme Court, Nassau County that granted the school district’s petition seeking to vacate the arbitrator’s award and denied the Association’s cross motion to confirm the award. 

The Appellate Division modified the lower court’s order addressing the arbitrator’s award with respect to (1) providing health insurance to individuals in the negotiating unit whose spouses are afforded New York State Health Insurance Program [NYSHIP] coverage where those spouses are employed by a participating agency other than the Merrick Union Free School District, and (2) directed the parties to negotiate a remedy for affected bargaining unit members for the relevant period.

The collective bargaining agreement provided that the district “would provide employees with single or family health insurance coverage under NYSHIP except that the district would not provide NYSHIP dual family coverage to spouses of School District employees who were afforded NYSHIP coverage through the School District or another public employer. 

The New York State Department of Civil Service, which administers NYSHIP, subsequently issued a Policy Memo 133 indicating that participating employers could not enter into collective bargaining agreements that denied dependent health insurance coverage to an otherwise eligible employee based on the fact that the employee's spouse was eligible for NYSHIP coverage through a different employer. 

The Association filed a grievance based on the Memo seeking to obviate the provision in the collective bargaining agreement limiting dual family coverage and “that all employees affected by the Memo be offered the option to obtain NYSHIP dual family coverage or a buyout.”

The grievance was ultimately submitted to arbitration and the arbitrator sustained the grievance, invalidating the health insurance provisions in the CBA to the extent that they denied NYSHIP dual family coverage to employees whose spouses were afforded NYSHIP coverage through public employers other than the School District. 

The Appellate Division said that “An arbitration award may be vacated on one of three grounds: 1. that it violates a strong public policy; 2. is irrational; or 3. clearly exceeds a specifically enumerated limitation of the arbitrator's power.”

Noting that in determining whether an arbitration award should be vacated on the ground that the arbitrator clearly exceeded a specifically enumerated limitation of his or her authority, the court said "[i]t is not for the courts to interpret the substantive conditions of the contract or to determine the merits of the dispute." Rather, an award may be set aside upon this ground only where the arbitrator exceeded the express limitations of his or her powers, as set forth in the agreement itself.

In this instance the court found that the CBA provided that "[i]n the event any provision or provisions hereof are held to be unlawful, the remaining provisions of this [CBA] shall remain in effect and the parties thereto shall meet forth with [for] the purposes of modifying the same to conform with the law and/or negotiating provisions in lieu thereof." 

The Appellate Division ruled that Supreme Court erred in vacating the award on the ground that the arbitrator exceeded his authority in invalidating Article XI (D) of the CBA to the extent it violated Article II (B), explaining that “ Even if the arbitrator misconstrued or misapplied substantive rules of law, his determination did not exceed his authority and is not subject to judicial review.” 

As to the remedy directed by the arbitrator -- "grant health insurance or appropriate buyout compensation to bargaining unit members whose spouses are afforded coverage under the Empire Plan from a participating agency other than the Merrick Union Free School District" and directed the parties to negotiate, for the period from February 1, 2008, to April 30, 2009, a retroactive remedy to affected bargaining unit members”, the court concluded that this remedy was consistent with the broad power given to the arbitrator by the issues the parties agreed to submit to arbitration: (1) "[d]id the District violate Article II, Section B; Article XI, Section D and Article XXIII of the Collective Bargaining Agreement when it denied [NYSHIP] Health Insurance to bargaining unit members whose spouses are afforded [NYSHIP] coverage" and (2) "[I]f so, what shall be the remedy." 

However, said the court, while the parties' stipulation purported to grant the arbitrator unfettered authority to fashion a remedy, the arbitrator's remedial powers are specifically limited by Article XXIII of the CBA, which provides, "[i]n the event any provision or provisions hereof are held to be unlawful, the remaining provisions of this Agreement shall remain in effect and the parties thereto shall meet [forthwith for] the purposes of modifying the same to conform with the law and/or negotiating provisions in lieu thereof." 

The bottom line: the Appellate Division ruled that “The award was proper to the extent it directed the parties to negotiate a retroactive remedy for the period February 1, 2008, to April 1, 2009, as such relief is within the terms of Article XXIII of the CBA.” 

However, in contrast, the court said that the prospective relief in the arbitration award, which directed the district, as of May 1, 2009, to provide dual NYSHIP coverage or appropriate buyout compensation to bargaining unit members whose spouses are afforded NYSHIP coverage from a participating agency other than the School District, “exceeded the specifically enumerated limitation on the arbitrator's powers set forth in Article XXIII of the CBA,” concluding that Supreme Court properly vacated that portion of the award. 

The Appellate Division remitted the matter to the Supreme Court for an order directing the arbitrator to fashion a prospective remedy consistent with the determination in the arbitration award that (a) the Department of Civil Service’s Policy Memorandum 133 has the force and effect of law and (b) is in accordance with Article XXIII of the CBA.

Decisions concerning Article 75 motions seeking a stay of arbitration

Decisions concerning Article 75 motions seeking a stay of arbitration

Schenectady v Schenectady PBA, 285 AD2d 725

NYC Transit Authority v Amalgamated Transit Union Local 1056, 284 AD2d 466 

The PBA Case

The Schenectady Police Department unilaterally placed police officer Cheryl Flory on medical leave, effective April 10, 2000 to July 3, 2000, pursuant to the Family Medical Leave Act [FMLA].

Flory had been absent on unlimited paid sick leave for more than a year. Flory's union, the Schenectady PBA, grieved and demanded arbitration, contending that the department had violated the collective bargaining agreement. It alleged that the agreement provided “members with unlimited sick leave that guarantee that there will be no reduction in employee benefits or any unilateral changes in past practices.”

The department attempted to obtain a stay of arbitration on the ground that the grievance was not arbitrable because implementation of FMLA, a Federal statute, could not be considered a violation of the terms of the Agreement.*

A State Supreme Court justice denied the stay, finding that the grievance was arbitrable because it did not hinge on an interpretation of Federal law.

Instead, said the court, it simply raised the issue of whether the Agreement's provisions for employee leave time had been violated by department's unilateral imposition of one of the terms of the FMLA -- a mandatory minimum of a 12-week leave without pay -- on Flory's sick leave.

In considering the department's appeal of the denial of its petition for a stay of arbitration the Appellate Division said that, in general, grievances arising under public sector collective bargaining agreements are subject to arbitration where:

1. The Taylor Law authorizes arbitration of the dispute; and

2. The parties have agreed in their collective bargaining agreement to submit such disputes to arbitration.

The Appellate Division found that “[b]oth of these prerequisites for arbitrability are satisfied in the instant matter” since:

1. There is no dispute that the issue of employee leave time is a term or condition of employment; and

2. Although the parties did not agree to arbitrate matters pertaining to FMLA, the Agreement reflects that both parties did express their consent to arbitrate grievances regarding leave time, with “unresolved grievances * * * [to] be submitted to arbitration by either party”.

Accordingly, the court affirmed the Supreme Court's order denying the department's motion for a stay of arbitration.

FMLA entitles eligible employees to a total of 12 workweeks of leave without pay during any 12-month period for “qualifying” personal and family medical reasons. There is nothing in the FMLA barring an employer from deeming an employee to be on FMLA leave while simultaneously retaining the individual in sick leave at full pay status provided it advises the individual of this fact in writing. However, placing an individual on FMLA status does not automatically deprive the individual of other his or her rights under law, rule, or regulation or set out in a collective bargaining agreement.

The Local 1056 Case

The New York City Transit Authority [NYCTA] obtained a stay of arbitration from a State Supreme Court justice. Local 1056 appealed.

The case arose when the NYCTA received a notice from the New York State Department of Motor Vehicles [DMV] that the license of one of its bus drivers, Marvin Moses, would be suspended effective August 3, 1999, because he had allowed his automobile insurance to lapse. DMV subsequently confirmed that Moses's license had been suspended as of August 3, 1999.

Learning that Moses had continued to drive a bus during his suspension, NYCTA, citing Vehicle and Traffic Law Article 19-A, the NYCTA suspended Moses's employment for 64 days, a period equal to that during which he drove with a suspended license.

Local 1056, contending that the suspension of Moses's license was made in error, in that Moses had automobile insurance in effect during the entire period of the suspension, and that Moses was unaware of the suspension because the DMV failed to notify him, grieved the suspension.

NYCTA obtained a stay of arbitration of the denial of Moses's grievance on the theory that “the grievance was not arbitrable because it was merely performing its statutory obligation to enforce the Vehicle and Traffic Law, and that the performance of such a statutory duty was not subject to arbitration pursuant to the parties' arbitration agreement.”

The Appellate Division said that a court may stay arbitration on the ground that the particular claim sought to be arbitrated does not fall within the scope of the parties' arbitration agreement.

In making such a determination, the courts do not to engage in a penetrating analysis of the scope of the substantive provisions of a collective bargaining agreement but merely determine “whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [collective bargaining agreement].”

Here, said the Appellate Division, the arbitration provision is broad and there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the collective bargaining agreement.

The collective bargaining agreement bars the arbitrator from rendering a determination or opinion “limiting or interfering in any way with the statutory powers, duties, and responsibilities of the Authority in operating, controlling, and directing the maintenance and operation of the transit facilities, or with the Authority's managerial responsibility to run the transit lines safely, efficiently, and economically”.

However, “[c]ontrary to the contention of the NYCTA, whether the resolution of the grievance by the arbitrator would violate that prohibition is not a matter for the courts.” Rather, such an inquiry requires the type of exacting interpretation of the precise scope of the substantive provisions of the CBA that is for the arbitrator” to resolve.

Vacating the stay that the NYCTA had obtained from Supreme Court, the Appellate Division commented that fact that submitting the grievance to arbitration “may require the arbitrator to interpret or apply statutes such as Vehicle and Traffic Law Article 19-A does not compel a different result.”

* FMLA entitles eligible employees to a total of 12 workweeks of leave without pay during any 12-month period for “qualifying” personal and family medical reasons. There is nothing in the FMLA barring an employer from deeming an employee to be on FMLA leave while simultaneously retaining the individual in sick leave at full pay status provided it advises the individual of this fact in writing. However, placing an individual on FMLA status does not automatically deprive the individual of other his or her rights under law, rule, or regulation or set out in a collective bargaining agreement.