Selected Reports issued by the Office of the State Comptroller during the week ending February 20, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending February 20, 2016

Click on text highlighted in color to access the full report

Office of Temporary and Disability Assistance failed to adequately monitor shelters

A state agency’s failure to adequately monitor and inspect homeless shelters allowed violations and squalid living conditions to go unchecked, according to an audit released by New York State Comptroller Thomas P. DiNapoli. The audit found fire and safety hazards, rodent and vermin infestations, and mold conditions at shelters under the oversight of the state’s Office of Temporary and Disability Assistance (OTDA). DiNapoli commended the agency for agreeing to strengthen its inspections and monitoring of shelters. DiNapoli’s audit covered the period from April 1, 2013 to Aug. 5, 2015.

http://www.osc.state.ny.us/press/releases/feb16/021616.htm?utm_source=weeklynews20160221&utm_medium=email&utm_campaign=021616release

City of Troy Audit  - Financial Condition
The City of Troy’s financial condition deteriorated because of poor budgeting, the overuse of rainy day funds to finance day-to-day operations and insufficient funding for capital costs, according to an audit released by State Comptroller Thomas P. DiNapoli. DiNapoli applauded the city’s new mayor for agreeing to take immediate steps to remedy the multitude of problems identified in the audit.

http://www.osc.state.ny.us/localgov/audits/cities/2016/troy.pdf?utm_source=weeklynews20160221&utm_medium=email&utm_campaign=021716release

Municipal Audits issued

Albany Public Library – Leave accruals

Cambria Housing Authority – Financial Management

Oneida County Department of Social Services – Contract Management and Payments

School Audits issued

Arlington Central School District – Cooperative Services Computer Inventory

Brocton Central School District - Purchases

Mineola Union Free School District – Competitive Quotations

Penn Yan Central School District – Separation Payments

Social Security Administration’s disability determination not binding on a public retirement system of this State.

Social Security Administration’s disability determination not binding on a public retirement system of this State.

Fusco v Teachers' Retirement Sys. of the City of New York, 2016 NY Slip Op 00782, Appellate Division, First Department

Kimberly Fusco appealed the New York City Teachers’ Retirement System’s [System] denial of her application for accidental disability retirement benefits.., unanimously affirmed, without costs.

The Appellate Division sustained the System’s determination indicating that some creditable evidence supported its finding that:

1. Fusco was not disabled by back pain or leg pain allegedly resulting from a fall while she walked up the steps at school, while at work.

2. Fusco failed to show that any disability was the result of an accident as there a lack of evidence that her fall was caused by anything other than her own misstep while ascending the stairs to the school.

In addition, the court held that the Social Security Administration’s finding that Fusco was disabled, rendered after the System’s determination, “is not dispositive of the Medical Board's disability determination.” 

This is consistent with previous court decisions holding that an employer's Section 207-a or Section 207-c decisions are not binding on PFRS; PFRS' disability rulings are not binding on the employer's Section 207-a or Section 207-c rulings and that the Workers' Compensation Board's decisions are not binding on PFRS or vice versa. See, for example, Cook v City of Utica, 88 NY2d 833 and Bett v City of Lackawanna et al.,76 NY2d 900.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00782.htm

_________________ 

The Disability Benefits E-book: - This 810 page e-book focuses on disability leaves and benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://section207.blogspot.com/

_________________ 

Section 1983 complaint of civil rights violations dismissed for failure to state a cause of action

Section 1983 complaint of civil rights violations dismissed for failure to state a cause of action  
2016 NY Slip Op 00881, Appellate Division, First Department

In this action brought against the City of New York for alleged violations of the federal Civil Rights Act, 42 USC §1983, the Appellate Division found that the “complaint failed to state a cause of action … as [the] plaintiff alleged only a single instance of wrongful conduct by a municipal employee without authority to make decisions regarding official policy.”

The Appellate Division noted that “The conclusory allegation of wrongful hiring and training, standing alone, cannot support a §1983 claim.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00881.htm

Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education

Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education

Appeal of Martha Kavanaugh, Decisions of the Commissioner of Education, Decision No. 16,870

Martha Kavanaugh, a tenured teacher employed by the Hamburg Central School District, filed a petition asking the Commissioner of Education to rescind the Board of Education’s decision granting James Martinez tenure as an elementary school principal “pending an investigation by the State Education Department’s Office of School Personnel Review and Accountability and referral of the matter to law enforcement.”

Kavanaugh’s petition contained some 200 paragraphs setting out Martinez’s employment history in the district and alleged various acts of misconduct, harassment, intimidation, and impropriety by Martinezand others that Kavanaugh contended “raise questions as to his moral character.”

The Commissioner dismissed Kavanaugh’s appeal, noting two critical procedural difficulties barring consideration of her appeal.

First the Commissioner held that Kavanaugh lacked standing to challenge granting tenure to Martinez, explaining that an individual may not maintain an appeal pursuant to Education Law §310 unless he or she can show he or she is aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights. In other words, “Only persons who are directly affected by the action being appealed have standing to bring an appeal.”

Rather than setting out any facts or evidence that her civil, personal or property rights were, or are, directly adversely affected by the School Board’s granting tenure to Martinez, the Commissioner said Kavanaugh's petition “expresses concern that others may be harmed by Martinez’s continued employment.”

In addition, the Commissioner found that Kavanaugh failed to name to a necessary partly, Martinez, as a respondent in her appeal.

It is well settled that “a party whose rights would be adversely affected by a determination of an appeal to the Commissioner in favor of a petitioner is a necessary party and must be joined as such.” Here, were Kavanaugh to prevail in the appeal, clearly Martinez’s rights could be adversely affected.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16870

Lawsuit brought seeking to remove an elected official from office leads to counter claims alleging slander, defamation, abuse of process and malicious prosecution

Lawsuit brought seeking to remove an elected official from office leads to counter claims alleging slander, defamation, abuse of process and malicious prosecution

Reszka v Collins, 2016 NY Slip Op 00807, Appellate Division, Fourth Department

Elizabeth Reszka initiated a lawsuit in which she sought a court order removing Councilman Joseph A. Collins from his position as a council member of the Town Board of the Town of Hamburg. While the matter was pending in the Appellate Division, Collins filed an amended answer in the original action and asserted two counterclaims. When the Appellate Division dismissed Reszka’s petition in the original proceeding, she asked Supreme Court to dismiss Collins' two counterclaims.

Collins' first counterclaim alleged Reszka held a press conference regarding the lawsuit, and further alleged that Reszka "made slanderous and defamatory and libelous statements intentionally, willfully and maliciously" attacking him in his individual and professional capacity. Collins’ second counterclaim alleged malicious prosecution and abuse of process. Supreme Court dismissed Reszka’s motion to have both counterclaims dismissed.

In response to Reszka’s appeal challenging Supreme Court’s denial of her motion to dismiss both counter claims, the Appellate Division, noting that although Civil Rights Law §74* provides that “statements made in the course of judicial proceedings are protected by absolute privilege provided that they are material and pertinent to the issue to be resolved in the proceeding, explained that a party cannot maliciously commence a judicial proceeding alleging false and defamatory charges and then circulate a press release based on the same charges and escape liability by invoking §74 of the Civil Rights Law.

The Appellate Division ruled that Collins’ first counterclaim “adequately states that [Reszka’s] action was without any basis in fact and was commenced solely to defame [Collins] as well as also alleging that Reszka acted with actual malice, a required element for a defamation claim brought by a public official. Under the circumstances the Appellate Division concluded that Supreme Court properly refused to dismiss Collins' first counterclaim.

As to Collins' second counterclaim alleging malicious prosecution, the Appellate Division said that where the underlying action is civil in nature, “the party alleging a claim for malicious prosecution must allege a special injury.” Finding that Collins "fail[ed] to plead that the civil proceeding involved wrongful interference with [his] person or property," the Appellate Division held that Supreme Court should have granted Reszka’s motion to dismiss Collins’ second counterclaim. The court observed that instead of alleging “a special injury,” Collins alleged damages amounting to "the physical, psychological or financial demands of defending a lawsuit," which claims are insufficient to constitute “a special injury for a claim of malicious prosecution.”

The court also ruled that to the extent Collins’ second counterclaim alleged abuse of process and not malicious prosecution, it must still be dismissed as well. "Insofar as the only process issued [here] was a summons necessary to initiate Reszka’s lawsuit."

Accordingly, said the court, “there was no unlawful interference with [Collins’] person or property because the institution of a civil action by summons and complaint is not legally considered process capable of being abused." Although Collins claimed that Reszka acted maliciously in bringing the action, the Appellate Division said that "[a] malicious motive alone . . . does not give rise to a cause of action for abuse of process."

* §74 of the Civil Rights Law, privileges in action for libel, provides “A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published. This section does not apply to a libel contained in any other matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00807.htm

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 

_________________

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

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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

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