Lack of substantial evidence to support findings of guilt of certain disciplinary charges results in remand to the appointing authority for new findings and reconsideration of the penalty to be imposed

Lack of substantial evidence to support findings of guilt of certain disciplinary charges results in remand to the appointing authority for new findings and reconsideration of the penalty to be imposed

Matter of Licciardi v City of Rochester, 2011 NY Slip Op 06781, Appellate Division, Fourth Department

The Appellate Division modified a portion of decision that found Mark A. Licciardi guilty of a number of act of alleged misconduct and remanded the matter to the City for “new findings” concerning one of the charges and for its reconsideration of penalty initially imposed, termination.

The court agreed with Licciardi contention that “several of the findings of misconduct rendered following a hearing are not supported by substantial evidence.”

In particular, the Appellate Division ruled that four of the charges of misconduct involved Licciardi's part-time outside employment while on sick leave from his employment as a firefighter. However, said the court, there was no relevant proof as a reasonable mind may accept as adequate to support [the] conclusion that working an additional part-time job while employed by respondent's Fire Department was not permitted or that the part-time job itself was improper or illegal.

The Department had alleged that Licciardi's conduct violated certain Department rules. The court ruled that there was no substantial evidence that Licciardi has conducted himself “in a manner unbecoming[] or prejudicial to the good reputation, the order, or discipline of the . . . Department” nor that he failed to conduct himself “at all times … to the credit of the Department.”

Further, the Appellate Division overturned the Department’s finding that Licciardi had violated the Department's rule that a member shall not " knowingly or intentionally make or cause to be made a false report in connection with the . . . Department or other employees thereof'” when he submitted a letter from his treating physician that stated without qualification that he was unable to work during the time that he was out on sick leave. The court noted that at the hearing Licciardi’s physician testified that Licciardi’s disability was causally related to a work incident at the Department and that, although he was prevented from working as a firefighter, the part-time job outside of the Department was therapeutic.

The court’s conclusion regarding this allegation was that it was not supported by substantial evidence.

Also, said the court, it agreed with Licciardi's contention that he had been found guilty of a charge “based on conduct that was not alleged in the single specification supporting the charge” and thus must be annulled “as outside the scope of the charge.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_06781.htm

Arbitration awards must conform to “strong public policy”

Arbitration awards must conform to “strong public policy”

New York City Transit Authority v Transport Workers Union of America, Court of Appeals, 99 NY2d 1

Most Taylor Law agreements provide that the final step in a grievance procedure is binding arbitration. Article 75 of the Civil Practice Law and Rules is the vehicle used to challenge, or confirm, such an arbitration award. The statutory basis for vacating an arbitration award, however, is very limited. Article 75 provides that a court may vacate the arbitration award only if the court finds that the rights of the challenging party were prejudiced by:

1. Corruption, fraud or misconduct in the procuring of the award; or

2. The partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

3. The arbitrator award exceeded his or her authority to decide the issue presented or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

4. A failure to follow the procedure of Article 75 unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

In addition to applying these statutory standards, courts have "judicially" vacated arbitration awards based on a finding that the award violates public policy.

In these consolidated appeals filed by the Transport Workers Union of America, the Court of Appeals explores the concept of the judicial vacating of arbitration awards based on a finding that the award violates public policy and explains the very limited basis upon which a court may vacate an arbitration award on public policy grounds.

The Rodriguez Decision

Rodriguez was a New York City Transit Authority [NYCTA] subway train operator for 16 years. During this 16-year period he had been twice disciplined and suspended for safety rule violations. On November 20, 1998, Rodriguez was involved in his third safety-related incident -- this one involving a collision between his train and another that resulted in a derailment because Rodriguez had not set a hand brake. NYCTA terminated Rodriguez from his position.

Some two weeks before this accident Rodriguez attended a refresher training course which taught the need to set the train's hand brake under the same circumstances.

Rodriguez grieved his dismissal. The arbitration panel, by a two-to-one vote, ruled that the penalty of dismissal was excessive given Rodriguez's long NYCTA service with only two prior "operational violations." Considering the record as a whole and "the parties [sic] progressive disciplinary policies," the arbitration panel reduced Rodriguez's penalty to time served without pay and a demotion for up to six months.

NYCTA filed an Article 75 petition seeking to vacate the award; the union cross-petitioned to confirm the award. Although Supreme Court ruled in the union's favor, the Appellate Division reversed that determination, vacating the panel's award reinstating Rodriguez [see 279 AD2d 474]. The Appellate Division's rationale for its ruling:

NYCTA had a statutory duty to operate the transit system for the safety of the public, and "[r]equiring the NYCTA to reinstate an employee who has been found to be a threat to public safety is contrary to public policy."

The Bright Decision

Leroy Bright was employed by the Manhattan and Bronx Surface Transit Operating Authority [MABSTOA], a NYCTA subsidiary, as a bus driver for over 20 years. On June 11, 1999, his bus struck and injured a pedestrian. He was immediately placed on leave without pay in contemplation of dismissal.

The Transport Workers Union filed a grievance pursuant to the contract disciplinary grievance procedure on Bright's behalf.

Although the arbitrator rejected Bright's exculpatory version of the accident and sustained the charge that he caused a preventable accident, the arbitrator declined to impose the "ultimate penalty" of dismissal. The arbitrator, instead, ordered MABSTOA to reinstate Bright without back pay and stated that this penalty was "to serve as a final warning" that a similar violation would put Bright at risk of termination.

Supreme Court vacated the arbitrator's award insofar as it reduced the sanction from dismissal to a suspension without pay, on the ground that the determination was contrary to the public policy embodied in Public Authorities Law Section 1204(15). The Appellate Division affirmed the lower court's determination [see 280 AD2d 677].

The Court of Appeals reversed both Appellate Division rulings, holding that:

Under our modern arbitration jurisprudence, judicial intervention on public policy grounds constitutes a narrow exception to the otherwise broad power of parties to agree to arbitrate all of the disputes arising out of their juridical relationships, and the correlative, expansive power of arbitrators to fashion fair determinations of the parties' rights and remedies.

The decision points out that the limited role of the public policy exception applies only in "cases in which public policy considerations, embodied in statute or decisional law prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator." In these two cases, the high court concluded that:

The public policy consideration invoked by the Authorities in the instant cases to vacate the arbitration awards manifestly fails to meet the strict standards for overturning such awards on public policy grounds that have been developed in the case law.

The narrowness of the public policy exception as applied to the arbitration process under collective bargaining agreements, said the court, is designed to ensure that courts will not intervene in this stage of the collective bargaining process in pursuit of their own policy views, or because they simply disagree with the arbitrator's weighing of the policy considerations.

Here, the court noted, the NYCTA and MABSTOA each entered into collective bargaining agreements that required the arbitration of disputes involving employee discipline. Thus statutory powers granted to NYCTA and MABSTOA under the Public Authorities Law may constitute a basis for vacating the awards only if the courts are able to conclude, "without engaging in any extended fact-finding or legal analysis" that the statute "prohibit[s], in an absolute sense, the particular matters to be decided or certain relief being granted."

Clearly the relevant statutes law did not bar NYCTA or MABSTOA from agreeing that the disciplining of employees for safety violations was to be subject to the contract grievance procedure, ultimately to be decided by an arbitrator. Having done so, said the court, an employer could not seek the vacating of an arbitration award by merely relying on a "general statutory authority."

There are some duties or responsibilities so important, however, that the courts will not permit the employer to delegate them or to bargain them away. For example, the courts have held that granting tenure to an educator is a non-delegable responsibility. Arbitrators may not alter duties and responsibilities vested by law in the agency and in such cases arbitration is forbidden, not because there are matters of public interest are involved, but because statutes require that tenure decisions be made by appointing authority.

The Court of Appeals noted that any analysis of whether an arbitration award violates public policy must begin with the actual terms of the award. In both Rodriguez's and Bright's situations, although the arbitration awards directed reinstatement of the employees, neither decision ignored the employer's safety concerns and the seriousness of the breaches of safety rules.

Rather, said the high court, the arbitration awards imposed significant financial sanctions in both cases: in Rodriguez's case, a forfeiture of approximately six weeks' pay and a six-month demotion, while Bright lost over four months' pay and was issued a warning that another offense would place him at risk of termination -- in effect, putting him on probation.

The essence of the ruling by the Court of Appeals appears to be as follows:

As the United States Supreme Court has framed the rationale for upholding the arbitration award when safety was the policy concern in an analogous case, because Public Authorities Law Section 1204(15) would not prohibit the parties to these collective bargaining agreements from having incorporated disciplinary standards providing for severe financial sanctions short of dismissal under the factual circumstances of these cases, the public policy embodied in that section is insufficient to justify overturning arbitration awards achieving the same results.

What could constitute a violation of public policy sufficient to meet the test established by the Court of Appeals? In Ford v CSEA, 94 AD2d 262, the Appellate Division's explanation in vacating an arbitration award on the grounds that it adversely affected a public policy would presumably meet the Court of Appeals' test.

The Ford case involved an employee of the New York State Department of Mental Hygiene who was charged and found guilty of misconduct -- having sexual relations with a patient. The penalty imposed by the arbitrator: a two month suspension without pay based on the arbitrator finding that the patient "consented" to the sexual act and that the physical abuse experienced by the patient was "minimal." In an Article 75 action to vacate the award, the agency head (Ford)asked the court to authorize the agency to dismiss the employee instead.

The Court said that the arbitrator "exceeded his powers and made an irrational award in violation of `a public policy which is beyond waiver' (by the State)." The Court indicated that "Any other result would ... defeat the very purpose for which the Mental Hygiene Law was enacted and the Office of Mental Hygiene created. No collective bargaining agreement to arbitrate can be allowed to destroy the very master it serves."

The Court noted that "mental patients are incapable of `consent' in (this) context ...." Further, the court said that "the determination of `physical abuse' ... cannot be passed off lightly with an adjective such as `minimal.'" It found such a characterization "appalling" and the arbitrator's refusal to impose the penalty of dismissal "plainly irrational".

As to vacating an arbitration award in situations involving the alleged violation of a negotiated agreement on the grounds that the award involved a "non-delegable duty," courts have ruled that the submission of an issue to an arbitrator does not allow the arbitrator to fashion a determination or remedy that violates public policy.

As the Court of Appeals said in Sweet Home CSD v Sweet Home Education Association, 58 NY2d 912, "the transfer or reassignment of teachers under Education Law Section 1711(5)(e) is a nondelegable duty of a school superintendent and a board of education which may not be surrendered through the collective bargaining process." Accordingly, an arbitrator may not provide a remedy involving the transfer or reassignment of educators that impairs that duty.

State's "sovereign immunity" defense waived when State moved lawsuit commenced in state court to a federal district court

State's "sovereign immunity" defense waived when State moved lawsuit commenced in state court to a federal district court

Estes v Wyoming Department of Transportation, 302 F3d 1200

Connie Estes, a driver's license examiner employed by the Wyoming Department of Transportation [WDOT], sued WDOT in Wyoming State Court. Estes alleged that WDOT violated Title I of the American with Disabilities Act [ADA] and Wyoming's workers' compensation law and, in addition, was in "breach of contract," when it dismissed her from her position.

WDOT deliberately moved Estes' lawsuit to federal court. In so doing, WDOT specifically stated that it was not waiving any of its rights to raise constitutional challenges to the district court's jurisdiction of it. In other words, WDOT attempted to move the case to federal district court while retaining it right to claim sovereign immunity under the Eleventh Amendment in that proceeding.

When WDOT later filed a motion for judgment, arguing the district court lacked jurisdiction because WDOT was entitled to sovereign immunity, it learned that its disclaimers in its earlier effort to "retain it sovereign immunity" notwithstanding its voluntarily moving the case to the federal court were ineffective.*

The Circuit Court, affirming the district court's decision, ruled that WDOT had waived its sovereign immunity with respect to Estes' ADA claim even if the only reason it removed the case to federal court was simply "to challenge the federal court's jurisdiction of the federal forum."

In contrast, the Circuit Court said that its holding with respect to WDOT in Estes' case does not affect the ability of a state to raise sovereign immunity when it is involuntarily brought into federal court and then raises an Eleventh Amendment defense. In the words of the Circuit Court:

It is only when a state removes a federal-law claim from state court to federal court that it "submits its rights for judicial determination" and unequivocally invokes the jurisdiction of the federal courts.

Accordingly, when WDOT removed the Estes case from state court to federal court, it "unambiguously invoked the jurisdiction of the federal court,” and thus waived any claim it might otherwise have to sovereign immunity under the Eleventh Amendment.

* WDOT also argued that Estes failed to exhaust state administrative remedies for her breach-of-contract claim.

Drafting disciplinary charges

Drafting disciplinary charges

Fella v County of Rockland, 297 AD2d 813

How important is it to draft disciplinary charges properly? According to the Appellate Division, even in situations where discipline may be warranted, the failure to word the charges and specifications properly may be fatal to the employer's attempt to discipline an employee.

Peter Fella, Rockland County's Commissioner of Hospitals, was suspended for 30 days without pay for allegedly violating the County's Equal Employment Opportunity Policy [EEOP].

According to the court's decision, following an investigation, the Rockland County Director of Employee Rights and Equity Compliance [Director] concluded that Fella had created a hostile work environment by promoting a person with whom he was then having a romantic relationship to a vacant assistant director of nursing position.

The Director held that the Commissioner's action violated the County's EEOP based on a finding that some employees said that they felt uncomfortable at work because Fella had this "romantic relationship" with a co-employee. This, according to the Director, created a hostile work environment and, as such, violated the EEOP. The County Executive adopted the Director's findings and suspended Fella for having created a hostile work environment in violation of the EEOP.

In its decision, the Appellate Division noted that the County's EEOP defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which `had the purpose or affect [sic] of unreasonably interfering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment.'" Citing DeCinto v Westchester County Medical Center, 807 F2d 304, the court explained that there is no sexual discrimination or harassment involved "where the conduct complained of by the employee involves an isolated act of preferential treatment of another employee due to a romantic, consensual relationship."

The Supreme Court judge commented that while Fella's decision to promote an individual with whom he was having a romantic relationship may constitute poor judgment, it did not constitute a violation of the County's EEOP - the alleged basis for bring the disciplinary action. As the County failed to establish any violation of its EEOP, the Supreme Court annulled the determination of the Rockland County Executive. The Appellate Division affirmed the ruling.

Of particular interest is the Supreme Court's noting that Fella's actions may have served as a basis for discipline, albeit based on other theories of alleged misconduct. While the Court concluded there was no violation of the EEOP and thus the County could not sustain the charges it filed against Fella, the decision suggests that Fella's behavior might constitute a legitimate basis for subjecting him to disciplinary action based on other specifications.

In other words, it is possible that had the County charged Fella with misconduct based on specifications other than violating the EEOP, the court might have allowed its disciplinary action against Fella to survive.

What might constitute such a charge and specification? Perhaps charging Fella with misconduct based on his alleged selection of a person for appointment to a position in the public service solely because of a personal relationship rather than making the selection on the basis of the Constitution's mandate that selection for appointment to the public service be based on "merit and fitness."

What lesson can be learned from Fella? While the charges and specifications filed against an employee should clearly apprise the individual the alleged "misconduct or incompetence" giving rise to the charge, the specifications should constitute acts or omissions that, if proven to have occurred, would support a finding that the employee was guilty of misconduct or incompetence. In any event, the employer should be certain that it is able to prove the allegations, whatever they may be, before initiating disciplinary action.

On the opposite end of the spectrum, where a disciplinary action has been "settled" and the penalty imposed includes placing the individual in "disciplinary probation status," the employer must make certain that in the event the employee is dismissed during this disciplinary probation period, the dismissal is based on the individual's failure to meet the specific requirements set out in the settlement agreement.

Perhaps the leading case illustrating this principle is Taylor v Cass, 505 NYS2d 929. Taylor, a Suffolk County employee won reinstatement with full back salary and benefits as a result of a court finding that he was improperly dismissed while serving his disciplinary probation.

It seems that under the terms and conditions of the six-month disciplinary probation period to which the parties had agreed, the County could terminate Taylor without any hearing if, in the opinion of his superior, Taylor's job performance was adversely affected by his being intoxicated while at work during his disciplinary probation period.

Taylor, while serving this probationary period, was terminated without a hearing for "failing to give a fair day's work" and "sleeping during scheduled working hours." The Appellate Division decided that Taylor's dismissal was improper because Taylor was not terminated for the sole reason specified in the disciplinary settlement: intoxication on the job.

Comptroller's audit focuses on school district's payroll and overtime practices

Comptroller's audit focuses on school district's payroll and overtime practices

Source: Office of the State Comptroller, Division of Local Government and School Accountability

The State Comptroller’s Division of Local Government and School Accountability audit report of the Webster Central School District explains that the thrust of its auditing of the District “… is to help school district officials manage their districts efficiently and effectively and, by so doing, provide accountability for tax dollars spent to support district operations.”

The focus of this audit was “to determine if District officials have established adequate controls over payroll and overtime pay to effectively protect District assets from loss or misuse for the period July 1, 2008 to November 16, 2010” and addressed the following related questions:

• Has the District established and implemented adequate internal controls to ensure that only appropriate and supported payroll payments are made?

• Has the District established and implemented adequate internal controls to effectively manage overtime, control costs and safeguard District assets?

Among the recommendations made:

1. The District should restructure its payroll process to avoid making any salary payments to employees in advance of services being rendered, in compliance with Education Law, State Education Department regulations and internal control best practices.

2. The District should ensure that it complies with all legal requirements when hiring retired public employees.

The Division’s report of its findings and recommendations are posted on the Internet at:

www.osc.state.ny.us/localgov/audits/schools/2011/webster.pdf

Administrative Law Judge recommends termination of employee found guilty of misconduct unrelated to official duties

Administrative Law Judge recommends termination of employee found guilty of misconduct unrelated to official duties

NYC Department of Sanitation v Ragone, OATH Index #1970/11

Pursuant to Mayoral Executive Order No. 16, the Department of Sanitation sought to terminate the employment of a worker who had been convicted of petit larceny.

The Order provides for the dismissal of any City employee convicted of a crime relating to their employment, which crime involves moral turpitude or bears upon their fitness to perform their duties.

OATH Administrative Law Judge Ingrid M. Addison found that Andrew Ragone had obtained a pension loan from the City. After cashing the check, he filed a sworn affidavit that he had not received it. NYCERS issued two supplemental checks, both of which Ragone cashed.

Judge Addison found that although the crime was not committed on Department property and did not concern Ragone’s work-related duties, the theft related to his status as a City worker because through that status, he obtained the loan and subsequent checks.

In the absence of compelling mitigating factors, Judge Addison recommended that Ragone be terminated.

Judge Addison’s decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1970.pdf

Employer liability for employee’s off-duty conduct

Employer liability for employee’s off-duty conduct

Donahue v Young, 298 AD2d 354

What liability does a municipality have when one of its firefighters assists in extinguishing fire - but not while on duty? According to the Donahue ruling, if the employee is not acting in the performance of his or her official duties, the employer does not have any liability for his or her action.

Ken Young, a New York City Firefighter, was off-duty, pursing personal business, when he spotted a car on fire while on the Van Wyck Expressway. Young stopped to assist. Apparently, as a result of Young's attempt to provide assistance, Walter Donahue sustained an injury and sued the City for damages.

The City argued that because Young was not on duty at the time, the City could not be held liable for the injury Donahue suffered. The Appellate Division agreed, stating that since Young acted voluntarily, "the doctrine of respondeat superior does not apply here." It ruled that the City could not be held vicariously liable for Young's actions.*

Although public employers may discipline an employee for off-duty conduct that negatively impacts upon the reputation or good name of the employer, it does not necessarily follow that an employer is responsible for its employees’ actions while they are off duty.

* The doctrine of “respondeat superior” expresses the concept that the employer is responsible for the actions of its employees in connection with their work 

Errors of law made in the course of arbitration

Errors of law made in the course of arbitration

Goldman v Architectural Iron Co., CA2, 306 F.3d 1214

From time to time, an arbitration award is challenged on the ground that the arbitrator applied the law incorrectly or did not properly consider the applicable law in making the award. Typically, the courts do not vacate an arbitration award merely because a party demonstrates the award is based on an "error of law."

Rather, as the Circuit Court held in DiRussa v Dean Witter Reynolds, Inc., 121 F.3d 818, an arbitration award may be vacated only if it exhibits a "manifest disregard of the law." What constitutes "manifest disregard of the law?"

In deciding the Goldman case, the Second Circuit said that "[g]iven the deference afforded arbitration decisions, this standard requires more than a mistake of law or a clear error in fact finding.” According to the Second Circuit:

Manifest disregard [of the law] can be established only where a governing legal principle is "well defined, explicit, and clearly applicable to the case," and where the arbitrator ignored it after it was brought to the arbitrator's attention in a way that assures that the arbitrator knew its controlling nature.

The Circuit Court cited New York Telephone Company v Communications Workers of America Local 1100, 256 F.3d 89, as authority for its ruling

Establishing positions in the public service

Establishing positions in the public service

Charleson v City of Long Beach, 297 AD2d 777

Establishing a new classified service position in the public service of a municipality is typically a fairly routine operation: the civil service commission having jurisdiction reviews the municipality's application and then classifies the position based on its duties as described in the application.*

Once classified, the appointing authority provides for its establishment in accordance with the controlling budgetary procedures.

The Charleson case concerned a variation of this: the establishment of a municipal position claimed to be a "public office." However, although public officers are public employees, not all public employees are public officers.

Carl R. Charleson and his co-plaintiffs filed a "taxpayers' action pursuant to General Municipal Law Section 51." They sought a court order declaring the positions of Director of Operations, Special Projects Manager, and Executive Assistant to the Director of Operations established in the City of Long Beach unlawfully established public offices. The three positions were included in budgets approved by the City Council.

Charleson contended that all three positions had been unlawfully created and thus the appointments of the incumbents, Eugene C. Cammarato, Robert Piazza, and Michelle Meiselman, respectively, to those positions were illegal. According to Charleson, "given the nature of the positions at issue, including the powers, duties, and authority thereunder, and the titles and salaries, the positions are de facto public or city offices that can only be lawfully created by legislative enactment" not merely by inclusion of such positions in a budget.

The Appellate Division's decision notes that "[t]he challenged positions ... are not among the lawfully created offices set forth in City Charter, Article 2, Section 11, which positions may be filled by appointment by the City Manager."

The City argued that the challenged positions were not de facto public or city offices and that the powers and authority exercised by the incumbents are not commensurate with those of public or city offices that may only be lawfully created by legislative enactment. Rather, said the City, the positions were "duly-created civil service positions that require no legislative action and that they were filled by the City Manager in a proper exercise of his general powers under the City Charter, rather than Article 2, Section 11 of the Charter."

After observing that Charleson’s and the City's arguments raised triable issues of fact, the court noted that aspects of the litigation was moot because "the disputed positions of Special Projects Manager and Executive Assistant to the Director of Operations no longer exist ... that Piazza and Meiselman have been reassigned to existing civil service positions, and that the position of Director of Operations has since been duly established as an appointive office by the City Council."

* A municipal position in the classified service is automatically in the competitive class unless placed in a different jurisdictional classification by law or by the State Civil Service Commission pursuant to the procedures set out in Section 20 of the Civil Service Law.

Public Employee Federation members to vote on new proposed collective bargaining agreement

Public Employee Federation members to vote on new proposed collective bargaining agreement

Sources: The Public Employees Federation; Office of the Governor

The Executive Board of the New York State Public Employees Federation (PEF) on October 17, 2011 voted to send a revised contract agreement with the State to the full union membership for ratification.

Ballots for ratification will be mailed immediately to union members. Votes must be returned by Thursday, November 3 for counting that day by the American Arbitration Association in Manhattan.
PEF President Ken Brynien said:

“Today’s vote gives hope to the 3,496 members who face losing their jobs if the contract is not approved. The revised agreement balances the needs of all of our members and I am strongly encouraging our membership to ratify the new agreement to save the jobs of their co-workers while preserving the level of service to taxpayers"

In a press release dated October 16, 2011, Governor Cuomo said of this new, proposed agreement: "The Administration has worked very hard with the PEF leadership to make modifications which the leadership believes will address the concerns of the membership. The contract modifications are revenue neutral to the state and achieve the same level of savings as the first proposal.”

A summary of the key provisions of the tentative agreement is available on the Internet at:

http://www.pef.org/storage/files/hoa.pdf

The entire agreement, 229 pages of text, is posted on the Internet at:

http://www.pef.org/storage/files/tent_contract.pdf

Termination recommended after employee refused to answer job related questions after being granted “use immunity”

Termination recommended after employee refused to answer job related questions after being granted “use immunity”

New York City Department of Corrections v  Lasonde, OATH Index #2526/11

A New York City correction officer, Chandra Lasonde, was served with disciplinary charges pursuant to Civil Service Law §75 alleging that she engaged in misconduct when she refused to answer questions during an interview conducted under Mayor’s Executive Order Number 16 (MEO-16).

MEO-16 section 4(b) provides, in relevant part, that designated City officials may require any officer or employee of the City to answer questions concerning any matter related to the performance of his or her official duties … after first being advised that neither their statements nor any information or evidence derived therefrom will be used against them in a subsequent criminal prosecution other than for perjury or contempt arising from such testimony. The refusal of an officer or employee to answer questions on the condition described in this paragraph shall constitute cause for removal from office or employment or other appropriate penalty.

Lasonde denied engaging in misconduct and asserted that she had constitutionally protected rights not to answer questions that did not involve her official duties as a correction officer notwithstanding having been granted “use immunity” which meant that her statements could be used against her were she subsequently prosecuted for a crime. 

OATH Administrative Law Judge Alessandra F. Zorgniotti found that Lasonde had engaged in misconduct as charged and recommend that her employment be terminated for refusing to answer questions at an official interview.

During the investigation, claiming 5^th Amendment protection, the correction officer, refused to answer questions about her union activities dispite being granted “use immunity” which meant that her statements could be used were she to be prosecuted for a crime.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that Lasonde was clearly informed of her obligation to answer under Mayor’s Executive Order No. 16, and the consequences should she refuse to do so. Finding that Lasonde had no legitimate basis for refusing to answer questions after immunity was granted. The Administrative Law Judge  recommended that Lasonde be terminated from her position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2526.pdf

The issue of compelling a public officer or employee to testify or risk termination was considered by the Court of Appeals in Matt v LaRocca, 71 NY2d. In the Matt case the Court of Appeals held that when a public employee is threatened with termination if he or she refuses to testify under oath, the testimony given by the individual is "cloaked with with is terminated transactional or use immunity." Other cases addressing use immunity include Gardner v Broderick, 392 US 273 and People v Corrigan, 80 NY2d 326. These ruling discuss the parameters of use immunity in connection with compelling a public officer or employee to answer questions concerning his or her performance of official duties.

In the event an individual fails to answer questions truthfully where he or she has use or transactional immunity, such immunity does not prevent any false answer the individual might give the investigator from being used against the individual if he or she is subsequently charged with perjury [United States v Apfelbaum, 445 US 115].

Further, the Court said that the Fifth Amendment privilege against self-incrimination does not prevent the government from prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries by claiming the protection of the Fifth Amendment.

Statutory rights to due process in a disciplinary action

Statutory rights to due process in a disciplinary action  

Matter of Soleyn v New York City Department of Educ., 2011 NY Slip Op 32604(U), Supreme Court, New York County, Docket Number: 106290/10, Judge: Emily Jane Goodman. Not selected for publications in the Official Reports.

Although Earl Soleyn, a teacher employed by the New York City Department of Education, was informed of his right to a disciplinary hearing, and participated in the proceeding with counsel, he challenged the process claiming that he was denied due process because disciplinary charges were not initially reviewed by the governing school board for a finding of probable cause. Instead, Soleyn contended, his school principal made the finding of probable cause.

Soleyn also alleged that his right to due process was violated because the disciplinary action was heard by a single arbitrator not withstanding his request that a three-member panel hear the charges filed against him.

As to Solon’s claim that the school board, rather than his principal, was required to make a finding of probable case, Judge Goodman said that Education Law §3020-a (1), in pertinent part, provides that "[a111 charges against a person enjoying the benefits of tenure . . . shall be in writing and filed with the clerk or secretary of the school district or employing board . . . after receipt of charges, the employing board, in executive session, shall determine by a vote of a majority of all the members of such board, whether probable cause exits to bring a disciplinary proceeding against an employee pursuant to this section.

Here, however, the Department contended that due process was not violated because on August 16, 2007, then-Chancellor Joel Klein delegated, pursuant to Education Law §2590h(19), the power to initiate and resolve disciplinary charges against teaching and supervisory staff members who have completed probation, to all high school principals.

Although Soleyn argued that such delegation would mean that the accuser makes the finding of probable cause, Judge Goodman disagreed and held that Chancellor Klein’s delegation did not constitute a violation of due process, where, as here, the ultimate fact finder is a neutral decision maker.

Addressing Soleyn’s claim that his due process rights were violated because the matter was heard by a single arbitrator, instead of a three-member panel, Judge Goodman said that the Department had rebutted this argument by citing Article 23 Section G of the DOE-UFT Collective Bargaining Agreement, which provides for a single arbitrator. 

Probably the seminal case addressing the impact of a collective bargaining agreement’s establishing alternate disciplinary procedures to those set out in law is Matter of Antinore v State of New York, 40 NY2d 6. Here the Court of Appeals ruled that a union could bargain away the employee’s statutory disciplinary rights if the alternate procedure so negotiated provided constitutional due process protections equivalent to those available under the statute.

The Soleyn decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2011/2011_32604.pdf

EEOC claims tempered by arbitration award

EEOC claims tempered by arbitration award

Collins v NYC Transit Authority, CA2, 305 F.3d 113

An employee is terminated from his or her position. The dismissal is sustained by an independent tribunal such as an arbitrator. The employee claims that he or she was really terminated by the employer in retaliation for his or her filing a compliant alleging that the employer violated his or her civil rights. Such an allegation, however, is difficult to prove if the employee's dismissal "for cause" has been upheld by an independent arbitrator. The facts and decision in Collins' case demonstrates this proposition.

New York City Transit Authority [NYCTA] Power Maintainer's Helper James Collins, an African American, was disciplined for insubordination after he refused to drive a truck he alleged had faulty brakes.

Collins subsequently filed a complaint with the New York State Division of Human Rights [SDHR] alleging that he was subjected to actions that he characterized as constituting unlawful discrimination such as his supervisor telling him that he could not attend a meeting of his work crew. After Collins filed this complaint with the Division, he contended that his supervisor accused him of using NYCTA equipment -- a vacuum cleaner -- for purposes unrelated to his work and that the supervisor used racial slurs against him when confronting him with this accusation.

In September of 1988, Collins was placed on an involuntary medical leave without pay as a result of his having "failed" a hearing test. Collins demanded, and was given, a retest of his hearing by a different physician. As a result of this second test, Collins was reinstated to his position. Claiming that he was placed on involuntarily leave because of his race, causing him to lose a significant amount of salary; Collins filed another discrimination claim with the SDHR/EEOC.

Collins' relationship with both his co-workers and his supervisors continued to deteriorate following his return from this leave. In the summer of 1990, Collins was disciplined following a dispute with a co-worker. In this instance, however, the arbitration board ruled there was not enough evidence to substantiate the claim and thus discipline was not warranted.

A new supervisor was assigned to Collins' unit. Collins' new supervisor reported three incidents of alleged misconduct and insubordination to the Superintendent of the Electrical Department. The supervisor also claimed that Collins had threatened him. The Superintendent, concluding that there was not sufficient evidence to support initiating disciplinary action against Collins, suggested that Collins be transferred to another unit. Collins said that he viewed this recommendation as retaliation.

In June of 1991, Collins was involved in another incident with his supervisor, which culminated with Collins allegedly punching the supervisor. As a result, NYCTA terminated Collins. Collins then filed a disciplinary grievance, which was ultimately considered by an arbitration panel in accordance with the terms set out in the Collective Bargaining Agreement. The arbitration panel sustained Collins' termination in a decision dated October 22, 1991.

After receiving a copy of the panel's decision, Collins filed yet another complaint with SDHR. SDHR transmitted the complaint to the Equal Employment Opportunity Commission [EEOC] for processing. After receiving a "right to sue" letter from EEOC in 1993, Collins sued NYCTA claiming that the Transit Authority, among other violations of law:

1. Discriminated and retaliated against him in violation of Title VII of the Civil Rights Act of 1964; and

2. Retaliated against him in violation of the 1st Amendment of the Constitution of the United States.

A federal district court judge granted the Authority's motion for summary judgment dismissing Collins' discrimination complaint and he appealed. The 2nd Circuit Court of Appeals sustained the lower court's ruling, observing that although a plaintiff's burden of demonstrating a prima facie case is minimal, Collins failed to satisfy even this minimal standard.*

The Second Circuit ruled that Collins failed to establish that his termination was a result of either retaliation or discrimination. Thus, said the court, he did not establish a prima facie case of unlawful discrimination.

In particular, the court found it significant that the final decision to terminate Collins was based on substantial evidence after a hearing before an independent board of arbitrators. The court noted that the arbitration panel conducted three days of hearings and issued a 14-page decision. The Circuit Court also noted that the board of arbitrators was a creature of a Collective Bargaining Agreement and was "undisputedly independent, neutral, and unbiased."

More often than not, the most difficult aspect of demonstrating a prima facie case is establishing the causal link between the protected activity and the adverse employment decision. In this case the Court apparently relied on the fact that Collins' dismissal was sustained after being considered by an independent arbitration panel after a hearing.

The Court noted that the fact that an arbitration panel finds an individual guilty of misconduct and sustains his or her termination does not in and of itself preclude the possibility of the individual proving a prima facie case. The fact that an independent body found "just cause" for dismissing the individual just makes the task more difficult.

In such a situation, said the court, the individual must present strong evidence to support his or her allegations of unlawful discrimination. Such strong evidence could include demonstrating that the arbitration process itself was somehow tainted. No such proof was presented by Collins.

This decision suggests that if an employee alleges he or she was terminated in violation of Title VII and the termination was sustained by an independent arbitrator, it may be advisable for the individual to first attempt to vacate the arbitrator's award before attempting to demonstrate a prima facie case of unlawful discrimination.

* To establish a prima facie case, the individual must show that (1) he or she was engaged in protected activity; (2) that the employer was aware of the activity; (3) that he or she suffered an adverse employment decision; and (4) that there was a causal link between the protected activity and the adverse employment decision.

Conflicting expert testimony

Conflicting expert testimony

Irish v McCall, 297 AD2d 895
Myers v McCall, 2 AD3d 1250, 1251 [2003], lv denied 2 NY3d 702 [2004]
Washington v McCall, 297 AD2d 901

If the decision maker credits the testimony of one expert over that of another in an administrative proceeding and the decision hinges on that expert's testimony, does the losing party have any recourse if it disagrees with the decision maker's determination regarding the credibility of the experts? In a word, YES! But the burden of proof to be satisfied by the party challenging the ruling is an extremely difficult one to meet.

For example, insofar as challenges to the Comptroller's reliance on the opinion of the New York State Employees' Retirement System's [ERS] medical expert is concerned, the Appellate Division had held that unless the "expert's opinion is so lacking in foundation or rationality as to preclude [the Comptroller] from exercising the authority to evaluate conflicting medical opinions," the court has no basis to disturb the Comptroller's decision. The court cited Harper v McCall, 277 AD2d 589, as its authority for this view.

The Comptroller's determination as to the creditability of the testimony of medical experts was the subject of three appeals recently considered by the Appellate Division, Third Department.

All three decisions challenged the Comptroller's sustaining rulings made by ERS based on the opinions of ERS's medical experts rather than the testimony of the medical experts produced by the applicants.

In each of the cases ERS had rejected applications for disability retirement benefits and the Comptroller had denied the applicants' appeals from those rulings.

In all three cases (Irish v McCall, Myers v McCall, and Washington v McCall), there was no factual dispute regarding the existence of injury; rather, the dispute in each case concerned whether or not the respective injuries sustained were so debilitating as to permanently disable the employee from performing his or her duties.

Each employee presented expert medical expert testimony by a physician at the administrative hearing in which, in all three cases, the medical expert concluded that the employee was permanently incapacitated from working. ERS, on the other hand, produced its own expert medical expert in each of the hearings. The thrust of the testimony of ERS's expert in each case was the employee-applicant was capable of performing the duties of the position.

While all three disability applicants argued there wasn't substantial evidence in the record to justify the rejection of their respective disability retirement applications, their underlying argument was that the Court should consider the testimony of their respective experts and weight it against the medical expert's testimony relied upon by the Comptroller.

The Court rejected this approach and stated that the relevant statute is very clear concerning determining the existence of a disability for the purposed of approving an application for a disability retirement allowance.

Citing Section 605(3c) of the Retirement and Social Security Law, the Appellate Division said that:

If the retirement system determines that the member is physically or mentally incapacitated for the performance of gainful employment, and that he was so incapacitated at the time he ceased his performance of duties and ought to be retired for disability, he shall be so retired.

Here ERS denied the applications submitted by the three workers based on the testimony of its medical expert. The hearing officer sustained ERS's determination and the Comptroller adopted the findings of the hearing officer.

Courts, said the Appellate Division, have consistently ruled that they will defer to a hearing officer's determination with respect to credibility issues. The Third Department said it was not persuaded as to the need to change that practice and upheld the Comptroller's denial of benefits in all three cases.

The test applied by the courts in such situations:

Where there is an articulated, rational and fact-based medical opinion offered, inconsistencies or other alleged deficiencies in the expert's testimony present questions of credibility for the administrative fact finder, rather than the courts, to resolve.

In all probability the same standard would be applied in cases challenging the appointing authority's reliance on the opinion of its medical expert in situations involving disability claims the involving Sections 71, 72 and 73 of the Civil Service Law or Sections 207-a and 207-c of the General Municipal Law.

Community of interest for the purposes of collective bargaining

Community of interest for the purposes of collective bargaining
Local 282 and Regional Transit Service, Inc., 35 PERB 3022

Individual, although paid at a supervisory pay level and substituted for the supervisor when the supervisor was absent, was determined to share a community of interest with unit employees and thus could not be excluded from the negotiating unit without evidence that the individual performed supervisory duties such as assigning work and overtime to employees, evaluating employees, approving leave requests, disciplining workers, or other supervisory duties.