Union cannot object to imposing demotion as a disciplinary penalty when demotion was a penalty authorized in the collective bargaining agreement

Union cannot object to imposing demotion as a disciplinary penalty when demotion was a penalty authorized in the collective bargaining agreement

City of Long Beach v Long Beach Professional Firefighters Assn., Local 287, 2016 NY Slip Op 00977, Appellate Division, Second Department [Appeal I]

City of Long Beach v Long Beach Professional Firefighters Assn., Local 287, 2016 NY Slip Op 00970, Appellate Division, Second Department [Appeal II]

The Appellate Division handed down two decisions involving the same parties on the same day. 2016 NY Slip Op 00977 [Appeal I] considered the merits of a disciplinary determination while 2016 NY Slip Op 00970 [Appeal II] considered the merits of a disciplinary determination that resulted in the filing of an appeal concerning the issues decided in Appeal I.

Appeal I

In this proceeding pursuant to CPLR Article 78 Jay Gusler challenged his demotion from the position of lieutenant to the position of firefighter. Supreme Court granted the City of Long Beach’s motion to dismiss the proceeding and, in effect, denied Gusler’s petition and dismissed the proceeding. Gusler appealed the Supreme Court’s ruling.

According to the Appellate Division’s decision, Jay Gusler was a lieutenant in the City of Long Beach Fire Department [Department] and multiple disciplinary and grievance proceedings relating to his employment had been brought or then were pending. 

In a "Settlement Agreement" executed by Long Beach Professional Firefighters Assn., Local 287 [Local 287] and the City of Long Beach  it was agreed that Robert L. Douglas would be appointed to preside over a hearing on the charges pending against Gusler. The settlement agreement also provided that Douglas would have "sole and exclusive authority" to determine the timeliness of the charges, Gusler's guilt or innocence, and the appropriate penalty, if any, to be imposed on Gusler if he were found guilty of one or more of the charges pending against him. 

The parties subsequently agreed that the hearing would be bifurcated. First, Douglas was to determine guilt or innocence. Then, if necessary, he would hold a hearing as to the penalty. The City Manager then would be required to "implement" Douglas's determination as to penalty, if any, without amendment or modification.

Douglas issued an opinion and award finding Gusler guilty of certain charges. He then held a second hearing as to the penalty to be imposed and ultimately determined that the penalty to be imposed was Gusler's demotion from the position of lieutenant to the position of firefighter.

Gusler and Local 287 then initiated a CPLR Article 78 against the City, the City Manager, and the City Council seeking, among other things, to nullify Gusler's demotion, contending that Douglas was without authority to determine that the penalty would be demotion, because that penalty is not provided for under §11-54 of the City Code of the City of Long Beach. In addition Gusler and Local 287 argued that as Douglaswas without authority to issue the penalty of demotion, its implementation — as was required under the settlement agreement — was "arbitrary and capricious, without rational basis, without basis in law, . . . an abuse of discretion, and . . . in excess of [the respondents'] jurisdiction." Long Beach moved to dismiss the proceeding, and, again, the Supreme Court granted the motion and, in effect, denied Gusler and Local 287’s petition and dismissed the proceeding.

The Appellate Division, agreeing that the City Code did not provide for “demotion” as a penalty, explained that “nothing in the City Code precluded the City and the Association from negotiating a collective bargaining agreement that permits imposition of that penalty,” citing Civil Service Law §76[4]. Further, the court pointed out that in the controlling collective bargaining agreement, “the City and the Association expressly authorized the penalty of demotion in cases of certain specified misconduct.”

The Appellate Division found that Douglashad acted within his authority under the settlement agreement to determine the penalty and selected a penalty expressly authorized by the parties themselves. Additionally, said the court, “in abiding by the terms of the settlement agreement, which required the City to impose the penalty determined by Douglas, the imposition of the penalty was not arbitrary or capricious, and the respondents did not abuse their discretion, act without basis in law, irrationally, or in excess of their jurisdiction.”

Appeal II

Referring to the facts stated in its decision in Appeal I, the Appellate Division said that the "Settlement Agreement" between the parties in this matter provided that the parties could challenge or appeal the determinations of the hearing officer, Robert L. Douglas, "through any appropriate means of legal recourse, whether under the collective bargaining agreement [CBA] and/or applicable law."

The relevant CBA provided that the Association had the right to "submit the determination . . . to final and binding arbitration in accordance with the Rules of the New York State Public Employment Relations Board (PERB) for Voluntary Arbitration (Grievance Arbitration), within Fifteen (15) days of the determination, where upon the arbitrator “shall review the record of the hearing and . . . decide if substantial evidence supports the determination and penalty." The CBA further provided that "[t]he arbitrator shall have no authority to consider any matter which was not presented in the course of the discipline and shall be the ultimate authority there from."

On December 14, 2012, Douglasissued his "Opinion and Award" determining that the penalty was to be demotion of Gusler from lieutenant to firefighter. The Association did not serve the City with a demand for arbitration before PERB until 32 days later, on January 15, 2013. The City did not dispute Local 287’s the demand was filed with PERB the same day it was served but, rather, intiated an CPLR Article 75 action to permanently stay the arbitration on the ground that the Association's demand was untimely.

Supreme Court granted the City's petition to permanently stay arbitration, explaining that, in light of the narrowly drawn arbitration provision in the CBA, the timeliness of the Association's demand for arbitration was for the court, not the arbitrator, to decide. The court then found that “under the clear terms of the CBA's arbitration provision,” the demand for arbitration before PERB was not timely. Local 287 appealed the Supreme Court’s ruling.

The Appellate Division said that “Whether the issue of the timeliness of an arbitration demand is to be determined by the court or by the arbitrator depends on the nature and scope of the agreement to arbitrate.” Here the court, agreeing with Supreme Court, found  that the arbitration clause in the CBA “is so narrowly drawn as to clearly withhold the issue of timeliness from the arbitrator.” In addition the Appellate Division pointed out that the CBA provided that “the arbitrator was to decide only whether the hearing officer's ‘determination and penalty’ were supported by ‘substantial evidence’ and not any matter ‘not presented in the course of the discipline’."*

The Appellate Division also sustained Supreme Court’s ruling, on the merits, that the Association's demand for arbitration before PERB was not timely, regardless of whether timeliness was to be measured by service or filing of the demand as the CBA required that the determination be "submit[ted]" in accordance with PERB's rules within 15 days after the determination and the demand for arbitration before PERB was neither served nor filed before January 15, 2013 and both “service and the filing of that demand were indisputably untimely.”

One final argument presented by Local 287 was that its prior demand for arbitration, before a forum other than PERB, could be regarded as complying with the CBA's 15-day limitation on the theory that its seeking arbitration before a different forum was merely a “ministerial error.” However, the decision notes that Local 287’s arguments to the court make clear that the Local’s prior demand was not a ministerial error, “but a considered decision to invoke the jurisdiction of the other forum.” In the words of the Appellate Division, “the issue of the propriety of [invoking the jurisdiction of another forum] which was litigated in another proceeding … is not before us.”

* The issue of the timeliness of the demand did not involve an interpretation of PERB's rules as to whether its jurisdiction is invoked by service or by filing as the demand was served and filed the same day. The issue involved an interpretation of the provisions of the CBA as to whether arbitration was available.

The decision in Appeal I is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00977.htm

The decision in Appeal II is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00970.htm

 __________________

The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

 

Journalist Law School fellowship at Loyola Law School, Los Angeles

Journalist Law School fellowship at Loyola Law School, Los Angeles

The Civil Justice Program at Loyola Law School, Los Angeles will host its 11th-annual Journalist Law School from Wednesday, June 8-Saturday, June 11, 2016 on Loyola’s Frank Gehry-designed campus in downtown Los Angeles. The application and other details are available at www.journalistlawschool.org.

Since 2006, Loyola Law School, Los Angeleshas offered journalists a summer crash-course in the law. The fellowship condenses core law-school subjects like Constitutional Law and Criminal Law along with break-out topics ripped from the headlines into a long weekend filled with courses taught by Loyola Law School faculty, practicing attorneys and judges. Recent sessions have included Demands for Public Company Spending Disclosures, Drone Strikes & Targeted Killing, Supervising the Police and Understanding the Supreme Court.

Journalist fellows are competitively selected. Journalists with at least three years of experience who cover the law in some fashion are encouraged to apply by Wednesday, Feb. 24. 

There is no cost to journalists to attend the fellowship. Instruction, lodging and most meals are included. And the Journalist Law School will cover half of travel expenses up to $300. Fellows will be housed at the nearby Millennium Biltmore Hotel Los Angeles.

Questions? Please contact 

.

Brian Costello, Esq.
Assistant Director, Marketing & Communications
Loyola Law School, Los Angeles
213.736.1444 (o) | 310-902-9560 (c)
 

Selected Reports issued by the Office of the State Comptroller during the week ending February 13, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending

February 13, 2016

Click on text highlighted in color to access the full report

Rochester area businessman enters guilty plea for bid rigging

Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Daniel Lynch, a Rochester-area businessman, for working with others to rig the bidding process for multi-million dollar public works contracts in Monroe County.
http://www.osc.state.ny.us/press/releases/feb16/020916.htm?utm_source=weeklynews20160214&utm_medium=email&utm_campaign=020916release

Amount of overtime worked by employees of state agencies continues to increase
Overtime pay at state agencies jumped for the sixth straight year to a record $716 million in 2015 – up nearly $55 million from the year before, according to a reportreleased by State Comptroller Thomas P. DiNapoli. The total number of overtime hours worked also increased, continuing a trend that began in 2011.

http://www.osc.state.ny.us/press/releases/feb16/021216.htm?utm_source=weeklynews20160214&utm_medium=email&utm_campaign=021216release

Municipal audits completed

Ballston Area Recreation Commission, - Board oversight

Longwood Public Library - Managing bank accounts

Upper Mohawk Valley Regional Water Board – Water accountability

School audits completed

Madison Central School District – Procurement of professional services

Starpoint Central School District – Financial condition

Hearing officer credits the agency's witnesses' testimony that their conduct towards the disciplined employee was not discriminatory or retaliatory

Hearing officer credits the agency's witnesses' testimony that their conduct towards the disciplined employee was not discriminatory or retaliatory
Rigaud v City of New York, 2016 NY Slip Op 00628, Appellate Division, First Department

The New York City Police Commissioner approved the disciplinary hearing officer's finding that Clifford M. Rigaud was guilty of misconduct and imposed a penalty of a “one-year dismissal probation period” and the forfeiture of 30 suspension days and 20 vacation days. The Appellate Division sustained the Commissioner’s decision.

The court said that substantial evidence supports the findings of misconduct, rejecting Rigaud’s contentions that his conduct and loss of temper were justified responses to allegedly discriminatory conduct by coworkers and superiors and retaliation for discrimination complaints which he filed, noting that the hearing officer credited the agency's witnesses' testimony, including their testimony that their conduct was not discriminatory or retaliatory.

Citing Berenhaus v Ward, 70 NY2d 436, the Appellate Division ruled that the Commissioner did not abuse his discretion in imposing the penalty, “which is not shockingly disproportionate to the offense.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00628.htm

 ______________________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Arbitrator to determine if contract clauses alleged in a grievance involve substantive contract provisions

Arbitrator to determine if contract clauses alleged in a grievance involve substantive contract provisions

Matter of Onondaga-Cortland-Madison Bd. of Coop. Educ. Servs. (Onondaga-Cortland-Madison BOCES Federation of Teachers, 2016 NY Slip Op 00796, Appellate Division, Fourth Department

Onondaga-Cortland-Madison Bd. of Coop. Educ. Servs. [BOCES] initiated an Article 75 proceeding seeking a permanent stay of arbitration of a grievance that alleged that BOCES violated certain provisions of relevant collective bargaining agreement (CBA) by changing the prescription copay benefit for its retirees. Supreme Court denied the petition and granted the cross-petition of the Onondaga-Cortland-Madison BOCES Fedn. of Teachers [Federation] to compel arbitration. The Appellate Division affirmed Supreme Court’s ruling.

The Appellate Division rejected BOCES’ contention that the matter was not arbitrable because the CBA provisions applied to the employees and not to retirees, and thus that there is no reasonable relationship between the copay benefit for retirees and the general subject matter of the respective CBAs.

Citing Village of Kenmore [Kenmore Club Police Benevolent Association, 114 AD3d 1185, (leave to appeal denied, 23 NY3d 903), the court explained that the issues concerning [the Federation’s] relationship to retired employees and the issues concerning [1] whether retirees are covered by the grievance procedure and [2] whether the clauses of the contract[s] support the grievance “are matters involving the scope of the substantive contractual provisions and, as such, are for the arbitrator" to resolve.

The Appellate Division said that it was “well settled that the court must conduct a two-part analysis in determining whether an issue is subject to arbitration pursuant to a CBA.” The first test: is there any statutory, constitutional or public policy prohibition against arbitration of the grievance. The second test: "is there a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Unanimously denying its appeal, the Appellate Division noted that BOCES “correctly concedes that the second test considered in the analysis is at issue here.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00785.htm

Terminated probationary employee has the burden of demonstrating an improper basis for his or her termination

Terminated probationary employee has the burden of demonstrating an improper basis for his or her termination

Francois v Walcott, 2016 NY Slip Op 00760, Appellate Division, First Department

The Appellate Division unanimously affirmed a determination by Supreme Court, New which denied the petition filed by Coquita Francois seeking to annul her termination during her probationary employee, to vacate her unsatisfactory rating for the 2012-2013 school year, and to reinstate her employment.

The Appellate Division explained that “[i]t is well established that a ‘probationary employee may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law.’”

Francois, said the Appellate Division, failed to demonstrate an improper basis for the termination of her probationary employment. In contrast, the employer’s documentary evidence provided a rational basis for the determination that Francois’ job performance was unsatisfactory.

Although Francois disputed the principal's account of events and the principal's opinion of her job performance, the Appellate Division said that she “failed to show that certain irregularities in the review process demonstrated bad faith or deprived her of a substantial right” and dismissed her appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00760.htm

Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing

Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing

Matter of Hopton (Commissioner of Labor), 2016 NY Slip Op 00743, Appellate Division, Third Department

Nina Hopton, a correction officer, was served with disciplinary charges alleging that she had violated her employer's rules [1] by having an improper personal relationship with an inmate and [2] by giving false statements to investigators regarding that relationship.

Following a disciplinary hearing held in accordance with Civil Service Law §75, an Administrative Law Judge found there was evidence sufficient to support the bulk of the charges filed against Hopton and recommended that she be dismissed from her position. The appointing authority accepted the findings and recommendations of the Administrative Law Judge and terminated Hopton employment.

Hopton applied for unemployment insurance benefits but the Unemployment Insurance Appeal Board [Board] denied her claim on the ground that she lost her employment due to misconduct. Hopton appealed the Board’s ruling.

The Appellate Division sustained the Board’s decision, explaining that the Board “properly gave collateral estoppel effect to the factual findings stemming from the disciplinary hearing inasmuch as the record establishes that [Hopton] had a full and fair opportunity to litigate the issue of misconduct at that hearing."

Although Hopton contended that she was appealing the disciplinary determination, the Appellate Division said that such an appeal “does not preclude the application of collateral estoppel.” In any event, said the court, the Board “drew its own conclusions that [Hopton’s] behavior, which involved violations of known policies of the employer and were detrimental to the employer's best interest, constituted disqualifying misconduct for the purpose of [eligibility for] unemployment insurance benefits."

Finding that substantial evidence supported the Board's decision, the Appellate Division said “it will not be disturbed.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00743.htm

_________________

The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html 

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New York City service contractor held liable for wages, benefits, interest and the payment of a civil penalty for its failure to pay employees prevailing wages and benefits

New York City service contractor held liable for wages, benefits, interest and the payment of a civil penalty for its failure to pay employees prevailing wages and benefits

Office of the City Comptroller v Paramount Security Group, Inc., OATH Index No. 2553/15

Paramount Security Group, Inc., a services contractor admitted to failing to pay prevailing wages and benefits of $1.8 million to 28 security employees working at the Health and Hospitals Corporation (HHC) offices.

It was undisputed that Paramount failed to pay prevailing wages to its security employees from December 2010 to March 2013. Paramount, however alleged that the entire blame for this violation was on HHC, which Paramount insisted prevented compliance with the prevailing wage law by refusing to approve increased wages.

OATH Administrative Law Judge John B. Spooner found that “the notion that Paramount knowingly violated the terms of its contract based upon verbal directions of HHC personnel, without protesting or seeking approval from a higher authority, was highly improbable” as the contract between Paramount and HHC provided, in pertinent part, that during the term of this agreement, “the contractor shall be responsible for paying the prevailing wage rate in New York City to all of its security guards.” The contract also provided that HHC was “not responsible for any type of payroll increase . . . . [e]xcluding prevailing wage requirements” [emphasis supplied].

The ALJ held that the evidence supports a finding that Paramount’s violations of Labor Law §230 were willful was liable for the wages, benefits due the employees, plus interest and a civil penalty. As to interest, Judge Spooner held that the Comptroller was entitled to  maximum interest, at the annual rate of 16%, from the date the wages and benefits were payable and in addition, Paramount should be assessed a civil penalty of 25% of the total violation.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2553.pdf

A “deadline” set out in a collective bargaining agreement may be a nonbinding housekeeping rule unless the penalty for noncompliance is set out in the agreement

A “deadline” set out in a collective bargaining agreement may be a nonbinding housekeeping rule unless the penalty for noncompliance is set out in the agreement
Raymond Muller v Government Printing Office, United States Court of Appeals, Federal Circuit, No. 2015–3032

Raymond Muller asked his union to have his grievance against his employer, the Government Printing Office [GPO], submitted to arbitration. The relevant contract provision stated that if the grievance was not resolved to the satisfaction of the parties at the agency level “Arbitration must be invoked within 30 days.” The agreement further provided that “[t]he arbitration hearing will take place within 4 months after filing of the notice of decision to proceed to arbitration, unless the parties mutually agree to an extension of the time limit.”

As the grievance was not resolved at the agency level, a timely demand for arbitration was submitted to GPO. GPO referred the matter to arbitration pursuant provisions set out in the relevant collective bargaining agreement. GPO, four months to the day from the date that arbitration had been invoked, wrote to the union and the arbitrator “to ask that the arbitration be closed for failure to comply with the four-month deadline.” After reviewing briefs submitted by the parties the arbitrator concluded that “[T]here is ample evidence in the record, although none is required contractually, that the union … was the direct and primary cause for the failure of the parties to meet the four-month requirement” and dismissed Muller’s grievance as “not arbitrable,” as the “four-month deadline” for holding a hearing had passed.” The arbitrator's decision was appealed and considered by the U.S. Circuit Court of Appeals, Federal Circuit.

The court unanimously disagreed with the arbitrator's determination, explaining that the relevant contractual provision did not require dismissal of the grievance in the event of noncompliance with the four-month deadline. The court characterized the deadline as “merely a nonbinding housekeeping rule” to encourage timely arbitration and applies to both the arbitrator and the parties involved. Nor, said the court, there was no “past practice” in place requiring dismissal under the circumstances of this case.

The Circuit Court noted that “[c]ourts should be careful not to ‘judicialize’ the arbitration process.” Arbitration typically envisions that each case be decided on its own under the controlling contract as “t]he collective bargaining agreement is the primary tool used in the arbitration process.” Thus, said the Circuit Court, [i]t is therefore up to the negotiating parties to impose any internal deadlines on the arbitration process.” Further, the commented the court, in this instance “it is not within the union's power to ensure compliance with the four-month deadline; and the [relevant contract] provision does not specify dismissal as a sanction for failure to comply with the deadline.”

The court also noted that the contract provides that a “failure to meet a deadline will result in the grievance moving to the next step.” Pointing out that the “next step after a hearing” is the decision by the arbitrator, the Court of Appeals characterized such a result as “nonsensical” and that GPO did not contend that “failure to meet the four-month deadline should result in a decision without a hearing.”

Ruling that there was no basis in the text of the master agreement to support the arbitrator's conclusion that noncompliance with the four-month hearing deadline automatically invalidated Muller's claim, the court remanded the matter for a determination of of Muller’s grievance on its merits.

The decision is posted on the Internet at:

http://caselaw.findlaw.com/us-federal-circuit/1723086.html

Disciplinary penalty imposed, termination, held reasonable under the circumstances

Disciplinary penalty imposed, termination, held reasonable under the circumstances

Weinstein v New York State Workers' Compensation Bd., 2016 NY Slip Op 00505, Appellate Division, Second Department

Robert S. Weinstein, a Workers' Compensation Law Judge, was served with a notice of discipline by which the respondent sought to terminate his employment based on three charges of insubordination, two charges of misconduct/incompetence, and three charges of misconduct. The arbitrator found that the Workers’ Compensation Board [Board] had proven seven out of the eight charges and that the penalty of termination was proper.

Weinstein filed an Article 75 petition seeking to vacate the arbitration award. Supreme Court granted the Board's motion to dismiss the petition and, in effect, denied Weinstein’s petition and dismissed the proceeding. Weinstein appealed, contending the penalty imposed, termination, “was unduly harsh and disproportionate.”

The Appellate Division observed that although “the excessiveness of a penalty is not one of the enumerated bases upon which an arbitration award may be vacated,” where an arbitration is compulsory, as is here the case, judicial review under CPLR Article 75 requires that the award be in accord with due process. Citing Russo v NYC Department of Education, 25 NY3d 946, the court rejected the Board’s contention to the contrary and held that “the excessiveness of a penalty is a basis upon which an arbitration award may be vacated.

The court ruled that in this instance “the penalty of termination was not so disproportionate to the offenses as to be shocking to one's sense of fairness, citing the so-called Pell Doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, explaining that the arbitrator rationally determined, based on the evidence presented, that Weinstein was insubordinate and failed to complete his assignments in a timely manner, despite several remedial measures undertaken by his employer, and dismissed his appeal.

The decision is posed on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00505.htm

___________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York Statecourt and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

___________________

  

The Doctrine of Legislative Equivalency defeats a Mayor’s unilateral decision to abolish a position in the civil service

The Doctrine of Legislative Equivalency defeats a Mayor’s unilateral decision to abolish a position in the civil service

Moser v Tawil, 2016 NY Slip Op 00501, Appellate Division, Second Department

Robert T. Moser was employed by the City of Middletown as a part-time code enforcement officer. On April 27, 2012, the Mayor of Middletown unilaterally decided to abolish that position for economic reasons. Moser filed a CPLR Article 78 petition seeking a court order annulling the Mayor’s decision that resulted in his termination and directing his reinstatement to his former position with back salary.

Following a hearing, Supreme Court determined that the Mayor had exceeded his authority under the Middletown City Charter and granted Moser’s petition.

The Appellate Division commenced its review of Mayor’s appeal by noting that “The questions that may be raised in a CPLR Article 78 proceeding include "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion."

Finding that Supreme Court correctly concluded that the Mayor did not have the authority to unilaterally abolish the position of part-time code enforcement officer, the Appellate Division explained that the City Charter “grants the Middletown Board of Estimate and Apportionment the power to create civil service positions in Middletown by providing that it "shall fix the powers and duties and regulate the salaries and compensation of all city officers and employees."

While the City Charter authorizes the Mayor, with certain limitations, to suspend an employee for cause, there is nothing in the City Charter granting the Mayor authority to unilaterally abolish civil service employment positions.

Sometimes referred as the Doctrine of Legislative Equivalency, the court said that the general rule, when not qualified by positive law, is that the power which creates an office may abolish it in its discretion and this rule applies to municipal offices created by the act of some municipal body. Accordingly, “having been granted the power to create civil service employment positions in Middletown, it is the Board of Estimate and Apportionment, and not the Mayor, that is vested with the power to abolish them.”

The Doctrine of Legislative Equivalency, applied by the Court of Appeals in deciding the Torre v County of Nassau, 86 NY2d 421, sets out the principle that a position created by a legislative act can be abolished only by a correlative legislative act.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00501.htm

In the event there is a conflict between a provision in the County Code and the County Charter, the provision in the County Charter controls

In the event there is a conflict between a provision in the County Code and the County Charter, the provision in the County Charter controls

James Carver v County of Nassau, 2016 NY Slip Op 00466, Appellate Division, Second Department

[See, also, James Carver v County of Nassau, 2016 NY Slip Op 00467, Appellate Division, Second Department]

Prior to 2007, the Nassau County Charter and the Nassau County Administrative Code both provided that the Commissioner of Police had control over the discipline of members of the Nassau County Police Department. In 2007, the Nassau County Legislature amended §8-13.0 of the County Administrative Code by adding subdivision (e), which amendment allowed for the resolution of certain disciplinary matters through binding arbitration.

In 2008, the Police Benevolent Association of the Police Department of the County of Nassau, N.Y., Inc. [PBA] and the County of Nassau entered into a collective bargaining agreement that, in pertinent part, provided that police officers “subject to a fine, penalty, or suspension of 10 or more days without pay, or its monetary equivalent,” had the option of proceeding to binding arbitration in lieu of a departmental disciplinary hearing. 

In 2012, the County Legislature enacted Local Law No. 9-2012 of the County of Nassau, repealing §8-13.0(e) of the County Administrative Code.

PBA challenged this action by the County Legislature seeking a court order declaring that the 2008 agreement was valid and was not altered by Local Law No. 9-2012. In addition, PBA alleged Local Law No. 9-2012, repealing §8-13.0(e) of the County Administrative Code, “did not impact the parties' contractual obligations pursuant to the 2008 agreement and, therefore, [PBA is] entitled to a permanent injunction enjoining the enforcement of Local Law No. 9-2012 of the County of Nassau.”

Supreme Court ruled that as the County Charter vested the power to discipline members of the Nassau County Police Department exclusively with the Commissioner of Police, the County Legislature's attempt to divest the Commissioner of a portion of that disciplinary authority by amending the County Administrative Code to allow for binding arbitration of certain disciplinary matters created a conflict between the Code and the Charter, and, in the face of such a conflict, the Charter controlled.

The Appellate Division agreed, holding that Supreme Court “properly concluded that the County Legislature's enactment of §8-13.0(e) of the Nassau County Administrative Code was invalid and that the subsequent repeal of §8-13.0(e) of the County Administrative Code by Local Law No. 9-2012 of the County of Nassau was proper and should not be enjoined.”

Citing Patrolmen’s Benevolent Association of the City of New York v PERB, 6 NY3d 563 and Town of Wallkill v CSEA, Town of Wallkill Police Department Unit, 19 NY3d 1066, the court said “as the [Nassau] County Legislature expressly committed disciplinary authority over the Nassau County Police Department to the Commissioner of Police, collective bargaining over disciplinary matters was prohibited.”

In the Patrolmen’s case, the Patrolmen's Benevolent Association of the City of New York (NYCPBA) sought to annul a decision by the Public Employment Relations Board (PERB) that the City need not bargain with the PBA over five subjects, even though those subjects had been dealt with in an expired collective bargaining agreement. The Court of Appeals sustained PERB’s ruling, explaining “that the New York City Charter and Administrative Code, as interpreted in Matter of City of New York v MacDonald (201 AD2d 258, 259 [1st Dept 1994]), required that the discipline of New York City police officers be left to the discretion of the Police Commissioner.”

In Wallkill, the Court of Appeals ruled that although for more than a decade collective bargaining agreements (CBA) between the Town of Wallkill (the Town) and the Town of Wallkill Police Officers' Benevolent Association, Inc. (PBA) provided that police officers subject to discipline by the Town had the right to a hearing before a neutral arbitrator, in 2007 the Town adopted Local Law No. 2, which sets forth disciplinary procedures for police officers different than those set out in the CBA.

The Court explained that notwithstanding “the strong and sweeping policy of the State to support collective bargaining under the Taylor Law," police discipline may not be a subject of collective bargaining under the Taylor Law “when the Legislature has expressly committed disciplinary authority over a police department to local officials."

Noting that Civil Service Law §76(4) states that "[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local" preexisting laws,” the Court of Appeals concluded that “that the Town properly exercised its authority to adopt Local Law No. 2 pursuant to Town Law §155" and that police discipline “is a prohibited subject of collective bargaining between the Town and the PBA.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00466.htm

The Kyung Hee University [KHU] Library in Seoul Korea is posting NYPPL items.

The Kyung Hee University [KHU] Library in Seoul, Korea is posting NYPPL items. 

The Kyung Hee University [KHU] Library in Seoul, Korea is including postings from New York Public Personnel Law in its Serials Collection. It reports that it has posted 7679 items from this LawBlog to date.

Below is an example of a recent KHU Library post:

New York Public Personnel Law: Police confrontations with mentally impaired citizens and inmates

저널명:

New York Public Personnel Law [Public Employment Law Press - BLOG]

발행일:

2016/01/28

본 자료는 도서관에서 구독하고 있지 않는 자료입니다. 페이지 아래에 표시되어 있는 옵션(ISSN 검색 KHU Library , 서명 검색 KHU Libray)을 통해 인쇄본 구독 여부를 확인 하시거나 또는 타도서관 자료복사 서비스를 이용하시기 바랍니다. 오른쪽에 FRIC배너가 보이시는 자료는 RISS에서 제공하는 복사서비스 링크를 클릭하셔서 신청하실 수 있습니다. 이 밖에 추가 문의가 있으시다면, 오른쪽 상단에 '도서관에 도움 요청' 을 클릭하셔서 직원에게 해당내용을 전달해 주시기 바랍니다. 최대한 빠르게 답변을 드리도록 하겠습니다. 감사합니다.^^

ISSN 검색 KHU Library

서명 검색 KHU Library

타도서관 자료복사

For those NYPPL readers who may prefer to read this LawBlog in Korean, the URL is
http://khis.khu.ac.kr

The Kyung Hee University [KHU] Library in Seoul Korea is posting NYPPL items.

The Kyung Hee University [KHU] Library in Seoul, Korea is posting NYPPL items. 

The Kyung Hee University [KHU] Library in Seoul, Korea is including postings from New York Public Personnel Law in its Serials Collection. It reports that it has posted 7679 items from this LawBlog to date.

Below is an example of a recent KHU Library post:

New York Public Personnel Law: Police confrontations with mentally impaired citizens and inmates

저널명:

New York Public Personnel Law [Public Employment Law Press - BLOG]

발행일:

2016/01/28

본 자료는 도서관에서 구독하고 있지 않는 자료입니다. 페이지 아래에 표시되어 있는 옵션(ISSN 검색 KHU Library , 서명 검색 KHU Libray)을 통해 인쇄본 구독 여부를 확인 하시거나 또는 타도서관 자료복사 서비스를 이용하시기 바랍니다. 오른쪽에 FRIC배너가 보이시는 자료는 RISS에서 제공하는 복사서비스 링크를 클릭하셔서 신청하실 수 있습니다. 이 밖에 추가 문의가 있으시다면, 오른쪽 상단에 '도서관에 도움 요청' 을 클릭하셔서 직원에게 해당내용을 전달해 주시기 바랍니다. 최대한 빠르게 답변을 드리도록 하겠습니다. 감사합니다.^^

For those NYPPL readers who may prefer to read this LawBlog in Korean, the URL is
http://khis.khu.ac.kr

Selected Reports issued by the Office of the State Comptroller during the week ending February 6, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending February 6, 2016

Click on text highlighted in color to access the full report

Former Monroe County Chief Information Officer enters guilty plea in bid-rigging case
Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Nelson Rivera, the former Chief Information Officer for Monroe County, for working with others to rig the bidding process for multi-million dollar public works contracts in Monroe County. Rivera entered a guilty plea before The Honorable Dennis M. Kehoe in Monroe County Court to two counts of the class “E” felony charge of Combination in Restraint of Trade and Competition in violation of General Business Law §§ 340 and 341, also known as New York State’s Donnelly Act. Based on what was stated on the record in court proceedings, it is expected that Rivera will be sentenced to five years of probation, may never again serve as a New York public employee, must pay a $25,000 fine, and will give up his government pension.

http://www.osc.state.ny.us/press/releases/feb16/020316a.htm?utm_source=weeklynews20160207&utm_medium=email&utm_campaign=020316arelease

Florida resident to make full restitution after stealing $274,920.16 in New York State pension funds
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced that Marc A. Eletz, 70, a resident of Boca Raton, Florida, was sentenced in Albany County Court to five months in jail, $200,000 in restitution and signed a confession of judgment in the amount of $74,920.16 for stealing $274,920.16 in New York state pension benefits. Eletz previously pleaded guilty to the crime of Grand Larceny in the Third Degree, a class D felony, in September 2015.

http://www.osc.state.ny.us/press/releases/feb16/020416.htm?utm_source=weeklynews20160207&utm_medium=email&utm_campaign=020416release

State Audits published

Metropolitan Transportation Authority - Bus Driver Licensing

Metropolitan Transportation Authority Metro-North Railroad - Payments to On-Board Service Managers

Office of Court Administration - Reporting on Foreclosure of Real Property Funds – Kings County

Municipal Audits published

Town of Ausable - Water and Sewer District Financial Operations

Fishers Island Waste Management District – Purchasing

Town of Guilderland – Employee Compensation and Benefits

Plattsburgh Housing Authority – Tenant Rents

Town of Salem – Financial Management

Westbury Water District - Purchasing


School Audits published

East Islip Union Free School District – Financial Condition

Elizabethtown-Lewis Central School District – Claims Processing

George Junior Republic Union Free School District – Tuition Billing

Otsego Northern Catskills Board of Cooperative Educational Services – Extra Classroom Activity Fund