A decision issued pursuant to a compulsory arbitration proceeding must have evidentiary support, cannot be arbitrary and capricious and meet the requirements of administrative due process

A decision issued pursuant to a compulsory arbitration proceeding must have evidentiary support, cannot be arbitrary and capricious and meet the requirements of administrative due process

Mazzella v Bedford Cent. Sch. Dist., 2017 NY Slip Op 07127, Appellate Division, Second Department

An Education Law §3020-a hearing officer sustained sustained five of the seven specifications supporting the charge of incompetence that Bedford Central School District [Employer] had alleged in disciplinary the charge it had filed against Ava Mazzella [Petitioner]. The penalty imposed by the hearing officer: termination of Petitioner from her position.*

Petitioner challenged the hearing officer's findings and the penalty imposed and initiated a CPLR Article 75 proceeding in Supreme Court seeking to have the arbitration award vacated. Supreme Court denied Petitioner's motion to vacate the award and Petitioner appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division said that in a CPLR Article 75 proceeding the grounds for vacating a hearing officer's decision rendered pursuant to Education Law §3020-a "include misconduct, abuse of power, and procedural irregularities." Where, as here, the parties are subject to compulsory arbitration, the decision "is subject to closer judicial scrutiny under CPLR 7511(b) than it would receive had the arbitration been conducted voluntarily."

To be sustained, said the Appellate Division, a decision in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious and must be in accord with administrative due process. In an appeal of a compulsory §3020-a arbitration decision, the Appellate Division said that "the court should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists."

Finding that the hearing officer's decision was rational, supported by adequate evidence, and not arbitrary and capricious, the court noted that under the controlling provisions of the Education Law "two consecutive annual ineffective ratings" constituted "a pattern of ineffective teaching or performance" and "a pattern of ineffective teaching or performance" constituted "very significant evidence of incompetence for purposes of this section."

Accordingly, the Appellate Division concluded that "It was rational for the hearing officer to rely on the 'ineffective' APPR ratings that Petitioner received during the relevant rating periods", as well as all the other evidence presented at the hearing, in sustaining the charge of incompetence.

Citing the so-called Pell Doctrine,** the Appellate Division said that "[u]nless an irrationality appears or the punishment shocks one's conscience, sanctions imposed by an administrative agency should be upheld" and then opined "[h]ere, the penalty of termination of [Petitioner's] employment was not irrational or shocking to one's sense of fairness." 

* Education Law §3020-a, as amended, provides for the compulsory arbitration of disciplinary charges filed against an educator by the appointing authority. The appointing authority or the employee may seek to confirm or vacate the arbitration award, as the case may be, in accordance with Subdivision 4 of §3020-a of the Education Law , which, in pertinent part, provides that "Not later than ten days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seventy-five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section ...." 

** Pell v Board of Education. of Union Free School District. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07127.htm

Termination of employment following extened absence without approval

Termination of employment following extended absence without approval  

Dep’t of Homeless Services v. Anonymous,OATH Index No. 1653/17

An agency employee [Anonymous*] who had worked in the New York City Borough of Manhattan was charged with being Absent Without Leave [AWOL] when she did not report to an assigned new workplace in another borough of New York City for over 13 months and failed to respond to notices regarding this absence.

Anonymous claimed that she was afraid to report to the new workplace because she had personally handled disciplinary action involving employees at that location. A psychologist who testified on Anonymous’ behalf opined that Anonymous suffered from depression and anxiety related to her reassignment to the new location.

The employer’s psychiatrist, on the other hand, testified that Anonymous  did not exhibit signs of severe anxiety or depression.

Office of Administrative Trials and Hearing Administrative Law Judge Astrid B. Gloade found this conflicting medical evaluations were of limited value as they were completed after the AWOL period.

Further, ALJ Gloade was not persuaded that Anonymous’ mental health prevented her from responding to department notices or reporting to work for over 13 months. Nor did the ALJ credit Anonymous’ contention that the relocation threatened her safety, as Anonymous' supervisors confirmed that security measures, including security guards, department police officers and "panic buttons" were in place.

Judge Gloade recommended that Anonymous be terminated from her position as a result of Anonymous' long, unexplained absence from her assigned duty station.

An appointing authority's may attempt to remove a tenured employee from his or her position for "absence" it deemed to be an abandonment of the position. In Ciccarelli v West Seneca Central School District, 107 AD2d 105, a teacher successfully challenged a Board of Education’s resolution [1]  holding that the educator had abandoned her position and [2] terminating her from her tenured employment. 

The Appellate Division held that the burden of proving that an educator had abandoned his or her tenured teaching position was upon the District. This, said the court, must be established "by clear and convincing evidence" that a teacher, by a "voluntary and deliberate act," intended to relinquish [the] teaching position and forfeit [his or her] tenure rights. Otherwise, ruled the Appellate Division, a tenured teacher may be terminated only in accordance with the provisions set out §3020-a of the Education Law.

In a similar situation involving an employee in the classified service [educators are in the unclassified service] a former rule of the New York State Civil Service Commission [4 NYCRR 5.3(d)] providing that a State employee absent for a period of ten or more days without an explanation would be deemed to have resigned from his or her position was held to violate the employee's right to administrative due process [Bernstein v Industrial Commissioner, 59 AD2d 678]. This type of provision, however, has survived in a number of  collective bargaining agreement [see New York State Off. of Mental Health v New York State Div. of Human Rights, 53 A.D.3d 887].

* Pursuant to OATH Rule of Practice section 1-49(d), respondent had requested that "Anonymous" be used in reporting this decision.

_______________

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

___________________

Administrative due process must be provided the accused employee in a disciplinary arbitration proceeding

Administrative due process must be provided the accused employee in a disciplinary arbitration proceeding

2017 NY Slip Op 03853, Appellate Division, First Department

Petitioner, a tenured educator, initiated a CPLR Article 75 action seeking a court order vacating an arbitration award in which Petitioner was found guilty of multiple disciplinary charges and was terminated.

The Appellate Division sustained the arbitration award, noting that the following administrative due process requirements were satisfied:

1. Petitioner's right to administrative due process was not violated as Petitioner [a] was provided with appropriate notice, [b] was represented by counsel at a 13-day hearing and [c] had the opportunity to present evidence and cross-examine witnesses;

2. The hearing officer issued a detailed decision in which she [a] thoroughly analyzed the facts, [b] evaluated the credibility of witnesses and evidence presented and [c] arrived at a reasoned conclusion; and

3. Petitioner's claim that the arbitrator was bias was speculative and unsupported by the evidence.

As to the penalty imposed by the arbitrator, dismissal from the position, the Appellate Division opined that considering "Petitioner's teaching deficiencies over the course of three years, the absence of any improvement despite assistance offered by the appointing authority," and Petitioner's "refusal to acknowledge her shortcomings," imposing the penalty of termination "does not shock the court's sense of fairness," citing the so-called Pell standard [Pell v Board of Education,  34 NY2d 222.

Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03853.htm

Failure to comply with contractual grievance procedures may not always serve as a basis a for a court's issuing a stay of arbitration where such issues are to be resolved by the arbitrator

Failure to comply with contractual grievance procedures may not always serve as a basis a for a court's issuing a stay of arbitration where such issues are to be resolved by the arbitrator

Matter of Arbitration Between Town of Greece and Civil Service Employees Association, Inc., Local 828, AFSCME, AFL-CIO, 2017 NY Slip Op 06785, Appellate Division, Fourth Department

The Town of Greece [Greece] initiated a CPLR Article 75 action seeking a permanent stay of the arbitration of a grievance arising from its termination of one of the Civil Service Employees Association, Inc., Local 828 [Local 828] members. Supreme Court denied Greece's application for a permanent stay of arbitration and directed it to hold a hearing pursuant to step two of the three-step grievance procedure set out in the collective bargaining agreement [CBA] between the parties "within 30 days."

Greece appealed and although the Appellate Division affirmed the Supreme Court's denial of the permanent stay of arbitration sought by Greece, it vacated that part of the Supreme Court's order that directed Greece "to hold a step two hearing."

The Appellate Division explained that Supreme Court erred in directing Greece to hold a step two hearing. Contrary to the court's determination, the Appellate Division said that "a step two hearing is not a condition precedent to arbitration under the terms of the CBA."

As the CBA contained "a broad arbitration clause and does not expressly identify any conditions precedent to arbitration," the Appellate Division said that any alleged failure of a party to comply strictly with the contractual grievance procedures or time limits is not a proper ground for a stay of arbitration because such issues are to be resolved by the arbitrator.

With respect to CBA between Greece and Local 828,  Appellate Division held that  "... as a step two hearing is a permissive and not a mandatory part of the CBA's grievance and arbitration procedure, strict compliance with each step in the procedure is not a condition precedent to arbitration."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06785.htm

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 21, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 21, 2017

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

New York StateComptroller Thomas P. DiNapoli issued the following audits and examinations:

Department of Health (DOH): Improper Medicaid Payments to Eye Care Providers (2015-S-6)

Auditors identified vulnerabilities in DOH’s provider enrollment and revalidating procedures that undermine its ability to ensure that only qualified providers participate in the Medicaid program and prevent improper payments for services. As a result of these weaknesses, six eye care professionals who did not fully comply with the DOH’s Medicaid policies for provider enrollment and revalidation were able to obtain Medicaid eligibility under questionable circumstances.  


Department of Health: Medicaid Program, Managed Long Term Care Premium Rate Setting (2015-S-30)

Two managed care organizations reported medical costs for services procured through a corporate affiliate that would have been more accurately classified as administrative costs. These costs, which should have been subject to an administrative cap, were included in the medical costs component of the premium rate, which is not capped. Based on an analysis of the corresponding impact on the 2013-14 Managed Long Term Care premium rates, auditors estimated the misclassification of costs led to questionable payments of at least $82.3 million.

Department of Health: Ambulatory Patient Groups Payments for Duplicate Claims and Services in Excess of Medicaid Service Limits (Follow-Up) (2017-F-3)

An initial audit released in June 2015 determined DOH did not implement adequate controls to enforce Ambulatory Patient Groups (APG) policy and payment rules. As a result, Medicaid made $32.1 million in actual and potential overpayments. Additionally, DOH did not have controls in place to prevent duplicate claims, resulting in $7.5 million in overpayments. In a follow-up, auditors found DOH officials made some progress in addressing the problems identified in the initial audit report. About $800,000 of the identified overpayments were recovered and DOH updated policy manuals to give clearer billing guidance to providers.


Metropolitan Transportation Authority: New York City Transit Subway Wait Assessment (Follow-up) (2017-F-7)

A prior audit determined that wait assessment performance did not improve during the audit period and that New York City Transit had not developed a full and comprehensive plan to deal with the long-term causes of service disruptions, including matters related to major structural and technology improvements. In a follow-up, auditors found the MTA made some progress in addressing the problems identified in the prior report. However, additional actions are warranted.  


State Education Department (SED): Brookville Center for Children’s Services Inc., Compliance with the Reimbursable Cost Manual (2016-S-75)

Brookville is a Nassau County-based not-for-profit organization providing preschool special education services to children with disabilities between the ages of three and five years. For the three fiscal years ended June 30, 2014, auditors identified $1,089,215 in reported costs that did not comply with requirements for reimbursement and recommended these costs be disallowed. The costs included: $305,207 in duplicative administrative costs; $240,673 in ineligible lease expenses; $273,100 in ineligible management fees; $234,291 in ineligible and/or insufficiently documented fringe benefit expenses; and $35,944 in over-allocated compensation, ineligible tuition reimbursements, and other insufficiently documented expenses.

State Education Department: Building Blocks Developmental Preschool Inc., Compliance With the Reimbursable Cost Manual (2017-S-1)
 
Building Blocks is a not-for-profit special education provider located in Commack. Building Blocks provides preschool special education services to children with disabilities who are between three and five years of age. For the three fiscal years ended June 30, 2015, auditors identified $56,966 in ineligible costs that Building Blocks reported for reimbursement. These ineligible costs included: $53,073 in non-reimbursable lease costs, $3,497 in non-reimbursable consultant costs, and $396 in non-reimbursable food costs.


State Education Department: Hawthorne Foundation Inc., Compliance With the Reimbursable Cost Manual (2017-S-3)

Hawthorne is a not-for-profit special education provider located in Westchester County. Hawthorne provides preschool special education services to children with disabilities who are between three and five years of age. For the fiscal year ended June 30, 2015, auditors identified $75,189 in ineligible costs that Hawthorne reported for reimbursement for the rate-based preschool special education program that it operated. The ineligible costs included: $56,619 in personal service costs for insufficiently documented staff time; and $18,570 in other than personal service costs. Auditors also determined Hawthorne did not disclose related-party transactions with three entities.

State Education Department: The Child Study Center of New York (CSC), Compliance With the Reimbursable Cost Manual (2017-S-13)

CSC, a not-for-profit organization located in Jericho, is authorized by SED to provide preschool special education services to children with disabilities who are between three and five years of age. For the fiscal year ended June 30, 2014, auditors identified $127,101 in ineligible costs CSC reported for reimbursement. The ineligible costs included $121,255 in employee fringe benefit costs that were incorrectly allocated and $5,846 in ineligible costs for food, personal travel, gifts, and other non-reimbursable expenses.

Department of Taxation and Finance: Controls Over the Collection of the Public Safety Communications Surcharge (2016-S-84)

The department has not established policies and systems to sufficiently ensure that wireless telecommunication service providers comply with the tax law and that the state receives all monies to which it is entitled. In particular, the department does not have adequate controls to ensure that all eligible providers supplying services in the state collect, report, and remit the surcharges for all eligible devices to the department.

Comptroller's audits reveals local water systems losing millions in revenue

Audits of municipal water systems estimate local governments are losing millions of dollars in revenue due to water loss, inaccurate meters or improper billing, according to a report issued today by State Comptroller Thomas P. DiNapoli. The report analyzed the results of audits conducted by DiNapoli’s office of 161 local government and seven public authority water systems from January 2012 through May 2017.

“Water leaks, broken pipes and aging infrastructure are costing local governments millions of dollars annually,” said DiNapoli. “Across New York, my audits have revealed infrastructure problems, poor budget practices and a lack of long-term planning are straining municipal finances and increasing costs for taxpayers. If these problems aren’t addressed, the issues plaguing water systems will only get worse.”

Of the audits, 22 pointed to water loss as an issue and estimated that fixes could yield as much as $2.2 million in savings.

More often than not, water loss is caused by leaks from broken or aging underground pipes.  In some cases, however, auditors found inaccurate meters or improper billing to be the problem. As a result, some customers are paying too much and others too little. Efficient operations would require that officials upgrade meters or improve the accuracy of the billing process.

Auditors also found that several local governments had insufficient revenues to operate their water systems, which was aggravated by incorrect billing. As with water loss, these practices negatively affected water system operating budgets and overall municipal finances. During the five-year period, a review of 16 municipalities with revenue or billing deficiencies revealed that corrective action could increase revenues by more than $400,000.

DiNapoli’s report also noted:

1. Several municipalities were routinely transferring money into the water fund from other funds, which continued to mask revenue shortfalls;

2. Water fund surpluses were being improperly used to subsidize general operating costs for municipalities;

3. The lack of adequate monitoring of system finances left local officials unaware of ongoing deficits and the dangers of depleting fund balances; and

4. Some local officials had no strategies to eliminate long-term deficits, improve infrastructure or replace aging equipment, or spend down significant surpluses.

The Comptroller’s office has expanded its audit focus to include issues regarding local water supplies. Recently, DiNapoli’s staff conducted an audit of a county’s oversight of water testing, identifying opportunities for improvement. In addition, upcoming audits are planned that will examine the cybersecurity of computer-based systems used to monitor, modify, regulate or manage municipal water facilities. In the wake of recent cyberattacks that have disrupted a number of local governments, including a municipal-owned dam in the Hudson Valley, these systems have come to the forefront as a critical risk area.

The U.S. House of Representatives’ Energy and Commerce Committee recently advanced a bill that would reauthorize the Drinking Water State Revolving Fund, which provides grants for water systems. This financial assistance helps local governments address critical drinking water issues, including protecting water quality, repairing infrastructure, and modernizing water meters.

This report is the second in a series examining various aspects of municipal water systems, including infrastructure, finances and organization.

The first report, Drinking Water Systems in New York: The Challenges of Aging Infrastructure, was issued in February 2017. To view the report, visit:

http://www.osc.state.ny.us/localgov/pubs/research/municipal-water-systems.pdf

Pension Plan limitations for "Tax year 2018

Pension Plan limitations for "Tax year  2018

Source: The Internal Revenue Service

The Internal Revenue Service has issued information concerning cost of living adjustments affecting dollar limits for pension plans and other retirement-related items for tax year 2018. 

Go to 2018 cost of living adjustments for information concerning Pension Plan Limitations and 401(k) Contribution Limits.

Determining the scope of a grievance/arbitration clause set out in a collective bargaining agreement

Determining the scope of a grievance/arbitration clause set out in a collective bargaining agreement

Thousand Is. Cent. Sch. Dist. v Thousand Is. Educ. Assn., 2017 NY Slip Op 06759, Appellate Division, Fourth Department

The Thousand Island Central School District [District] and the Thousand Island Education Association [Association] entered into a collective bargaining agreement [CBA] that provided for the arbitration of "any alleged violation of this agreement or any dispute with respect to its meaning or application."

The Association filed a grievance on behalf of one of its members [Teacher] alleging that the District had violated the provisions of the CBA that require the District to maintain salary schedules in an ethical manner, to adjust teacher salaries based on graduate credits earned, and to abide by the salary schedules.

The Association alleged that when Teacher was hired the District mistakenly placed her on the salary schedule without properly taking into account the graduate credits that she had earned and, as a result of that error, Teacher had been underpaid since the effective date of Teacher's employment by the District.

In response to the Association's demand for arbitration of the grievance the District commenced a CPLR Article 75 proceeding seeking a permanent stay of arbitration. In response to the District's action, the Association cross-moved to compel arbitration.

Supreme Court denied the Association's cross motion to compel arbitration. The Association appealed and the Appellate Division reversed and directed the parties to proceed to arbitration.

The Appellate Division again applied the two-part test used by the courts to determine whether a matter is subject to arbitration under a CBA, finding, first, that there was no statutory, constitutional or public policy prohibition against arbitration of the grievance.*

Turning to the second test, the Appellate Division decided that "the parties in fact agreed to arbitrate the particular dispute" as there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

With respect to second prong of the test, the court said "[t]he dispute concerns whether [the District] placed Teacher at the correct step of the salary schedule and paid her properly based on the graduate credits that she earned, and thus it is reasonably related to the general subject matter of the CBA." In view of this, "it is the role of the arbitrator, and not the court, to make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, e.g. does the scope of the CBA's grievance provisions encompass "the initial placement of a new employee on the salary schedule, as opposed to the proper payment of an existing employee, and whether the subject matter of the dispute fits within them?"

* The District conceded that arbitrating grievance concerning salaries to be paid to individuals is not proscribed by law or public policy and thus only the second prong test was at issue.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06759.htm

Negotiating disciplinary procedures for City of Schenectady police officers held a prohibited subject of collective bargaining

Negotiating disciplinary procedures for City of Schenectady police officers held a prohibited subject of collective bargaining

City of Schenectady v New York State Pub. Empl. Relations Bd., 2017 NY Slip Op 07210, Court of Appeals

The City of Schenectady [Schenectady], under color of §133 of Article 9 of Second Class Cities Law, had announced that it would no longer be bound by negotiated police disciplinary procedures then set out in a collective bargaining agreement between Schenectady and the Schenectady Police Benevolent Association [PBA]. Schenectady advised PBA that was replacing the contract disciplinary procedure, under which an employee upon whom disciplinary charges had been served had the right of appeal to an arbitrator, and, instead, unilaterally adopted disciplinary procedures that substituted the Public Safety Commissioner for the arbitrator as the ultimate administrative disciplinary decision maker.

PBA challenged the City's action, obtained a favorable ruling from the Public Employment Relations Board and ultimately the matter was considered by the Appellate Division.

The Appellate Division opined that the Taylor Law mandates that disciplinary procedures for all public employees be the subject of good faith collective bargaining, commenting that “courts have long recognized the 'strong and sweeping policy of the State to support collective bargaining under the Taylor Law." The Appellate Division then ruled that "the presumption is that all terms and conditions of employment are subject to mandatory bargaining" [City of Schenectady v New York State Pub. Empl. Relations Bd., 136 AD3d 108].

Schenectady challenged the Appellate Division ruling and appealed the matter to the Court of Appeals. NYPPL summarized* the issue presented in Schenectady's appeal of the Appellate Division's decision to the Court of Appeals.

The Court of Appeals framed the issue before it as "Schenectady asks us to reverse the holding of the Appellate Division that the relevant provisions of the Second Class Cities Law were superseded by the enactment of the Taylor Law and thus collective bargaining applies to police discipline in Schenectady."

Noting that this was not the first time it had addressed the impact of the Taylor Law with respect to the issue of police discipline, the Court of Appeals said that its rulings in Matter of Patrolmen's Benevolent Assn., 6 NY3d 563, and Matter of Town of Wallkill, 19 NY3d 1066, resolved the question at issue here: "Is there a public policy strong enough to justify excluding police discipline from collective bargaining?"

In Patrolmen's Benevolent Association the Court of Appeals held that the New York City Charter and Administrative Code gave the police commissioner "cognizance and control over the . . . discipline of the department" and the authority "to punish [an] offending party." In Town of Wallkill, the Court of Appeals pointed out that Patrolmen's Benevolent Assn. was "dispositive where Wallkill had enacted a local law vesting disciplinary power with the Town Board.

In Schenectady the Court of Appeals concluded that the Second Class Cities Law, enacted prior to Civil Service Law §§75 and 76, specifically "commits police discipline to the police commissioner" and sets out the relevant disciplinary  procedures.

Finding that the Taylor Law's general command regarding collective bargaining was not sufficient to displace the more specific authority granted by the Second Class Cities Law, the Court of Appeals ruled that its decisions in Matter of Patrolmen's Benevolent Assn.and Matter of Town of Wallkillcontrol and police discipline is a prohibited subject of collective bargaining with respect to the City of Schenectady.

The Court of Appeals then reversed, with costs, the Appellate Division's ruling and annulled the determination of the Public Employment Relations Board challenged by Schenectady.

* NYPPL's analysis of the issues before the Court of Appeals are posted on the Internet at: https://publicpersonnellaw.blogspot.com/2017/09/court-of-appeal-to-determine-whether.html

The Court of Appeals' decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07210.htm

_______________

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

___________________

Removing a judge from his or her office

Removing a judge from his or her office
Matter of Ayres, 2017 NY Slip Op 07207, Court of Appeals

J. Marshall Ayres [Petitioner], a non-lawyer Justice of the Conklin Town Court, sought the Court of Appeals' review of a determination of the New York State Commission on Judicial Conduct sustaining certain charges of misconduct and removing Petitioner from office.  The Court of Appeals, after a plenary review of the record, sustained the Commission's findings and concluded that Petitioner's removal was warranted.

The decision sets out the details of the events that resulted in the Commission's removing Petitioner from his office and describes a number of applicable judicial standards of ethics that a judge must be guided by so as to act "in such a manner as to inspire public confidence in the integrity, fair-mindedness and impartiality of the judiciary." The Court of Appeals said the Petitioner "persisted in ... serious misconduct even after County Court informed" him as to his "proper role" as a judge. The court said that Petitioner's "misconduct is compounded by his failure to recognize these breaches of our ethical standards and the public trust" and that "[j]udges are held to 'standards of conduct more stringent than those acceptable for others.'"

In the words of the court, Petitioner "misses the essential point: that, as a judge, his conduct had to both be and appear to be impartial." This is a particularly high standard  and the misconduct with "which [Petitioner] is charged and which he does not deny — fails to meet it."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07207.htm

A statute designating that certain public employees shall become members of the State and Local Employees' Retirement System preempts enrolling such employees in a different public retirement system

A statute designating that certain public employees shall  become members of the State and Local Employees' Retirement System preempts enrolling such employees in a different public retirement system
2017 NY Slip Op 07025, Appellate Division, Third Department

Petitioner, a Suffolk County Park Police Officer, applied for performance of duty and accidental disability retirement benefits with the New York State and Local Police and Fire Retirement System [PFRS] alleging that he was permanently incapacitated from performing his job duties as the result of a work-related injury. The application was denied because Petitioner was not a member of PFRS but, in fact, was a member of the New York State and Local Employees' Retirement System [ERS].

Petitioner requested a re-determination and, following a hearing, the Hearing Officer upheld the Department's decision. The Comptroller adopted the Hearing Officer's decision that Petitioner was a member of ERS and not a member of PFRS and Petitioner appealed the Comptroller's ruling.

Petitioner argued that the Comptroller should have found that he was a member of PFRS because his job duties satisfied the definition of a police officer within the meaning of Civil Service Law §58 and he was a member of an organized police force.

The Appellate Division's sustained the Controller's determination explaining that:

1. §89-r of the Retirement and Social Security Law [RSSL] was enacted for the purpose of establishing a 25-year retirement plan for individuals employed as Suffolk County Park Police Officers as Chapter 605 of the Law of 1966;*and

2. Petitioner had enrolled as a member of ERS when he began his employment as a Suffolk County Park Police Officer in 2003.

PFRS is "a separate retirement system for police and fire[fighters]" that includes a 20-year retirement plan for members of the Suffolk County police departments in accordance with RSSL §387-a.** Although eligibility for this plan also includes other Suffolk County law enforcement personnel, Suffolk County Park Police Officers are not included in the list of RSSL §387-a eligible Suffolk County law enforcement personnel and are instead provided for by RSSL §89-r.

In view of this statutory prescription with respect to membership set out in the RSSL, the Appellate Division held that the Comptroller's determination that Petitioner was a member of ERS rather than PFRS was not "irrational, unreasonable or contrary to the statutory language." 

* "Retirement of county park police officers in Suffolk county."

** "Retirement of members of the Suffolk county police force; new plan."

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2017/2017_07025.htm

Guidelines followed by courts in reviewing a challenge to a disciplinary decision made after a hearing held pursuant to compulsory arbitration

Guidelines followed by courts in reviewing a challenge to a disciplinary decision made after a hearing held pursuant to compulsory arbitration

2017 NY Slip Op 07122, Appellate Division, Second Department

Education Law §3020-a mandates compulsory arbitration in the event an educator challenges disciplinary charges that have been filed against him or her by the appointing authority.

Petitioner was found guilty of charges of misconduct filed pursuant to Education Law §3020-a after a hearing. The penalty imposed: termination from the position. Petitioner then initiated an action in Supreme Court pursuant to CPLR Article 75 seeking a court order vacating the arbitrator's determination. Supreme Court, however, confirmed the arbitration award and Petitioner appealed that court's ruling to the Appellate Division.

The Appellate Division affirmed the lower court's decision explaining:

1. Where the obligation to arbitrate arises through a statutory mandate such as Education Law §3020-a, the determination of the arbitrator is subject to closer judicial scrutiny than it would otherwise receive.

2. An award resulting from a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious.

3. The arbitrator's decision must be rational or have a plausible basis.

4. The reviewing court "should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists."

The Appellate Division held that the arbitrator's determination had evidentiary support and was not arbitrary or capricious. Further, the court found that the arbitrator's determination "was in a form sufficient to enable [Petitioner] to understand its basis so as to permit an intelligent challenge and adequate judicial review."

The decision also notes that Petitioner "failed to present evidentiary proof of actual bias or the appearance of bias on the part of the arbitrator and thus failed to establish entitlement to vacatur of the arbitrator's award  on the ground of partiality."

As to the penalty imposed by the Arbitrator, termination, the Appellate Division, citing Pell v Board of Education of Union Free School District No. 1, 34 NY2d 222, said that the penalty "does not shock the conscience" and sustained it.

* §3020-a(2)(a) of the Education Law requires the appointing authority to provide the individual against whom disciplinary charges are served with a written statement specifying (i) the charges in detail and (ii) the maximum penalty which will be imposed by the board if the employee does not request a hearing while §3020-a(2)(f) provides that "The unexcused failure of the employee to notify the clerk or secretary of his or her desire for a hearing within ten days of the receipt of charges shall be deemed a waiver of the right to a hearing."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07122.htm

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 14, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 14, 2017 
Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report 

Some NY Schools Not Reporting Bullying or Harassment 

Many New York schools fall short when it comes to protecting students from harassment and discrimination based on gender, race, religion, sexual orientation or gender identity, according to an auditby New York State Comptroller Thomas P. DiNapoli. 

Former Ontario Town Water Superintendent Charged With Covering Up Failure to Fix Water Leaks 

Former Ontario Water Superintendent Rodney Peets was arraigned in Wayne County on charges of offering a false instrument for filing, tampering with a public record and official misconduct after a year-long investigation by the State Comptroller’s Office, the New York State Police, and Acting Wayne County District Attorney Christopher Bokelman.

Resolving an issue of statutory interpretation in the event the statutory language is ambiguous

Resolving an issue of statutory interpretation in the event the statutory language is ambiguous

Feinman v County of Nassau, 2017 NY Slip Op 07110, Appellate Division, Second Department

The plaintiffs [Plaintiffs] in this action had worked at the Office of the Nassau County Attorney from 2002 or 2003 until 2009 and prior to that time had worked for the City of New York or the State of New York. They alleged that they "had been wrongly charged contributions to their health insurance premiums" under color of Nassau County Ordinance No. 543-1995. Plaintiff's petitioned Supreme Court for summary judgment seeking a refund of contributions paid by them and a declaration that they were entitled to receive health insurance coverage without contributions to the cost of premiums.*

Supreme Court determined that the plain language of Ordinance No. 543-1995 required the County to pay the full cost of Plaintiffs' health insurance premiums. The court said that:

1. §4.1(a) of the Ordinance provided that, "[f]or all employees hired prior to January 1, 2002, ... the County shall pay the full cost of the health insurance premium," but "[f]or all employees hired on or after January 1, 2002 and earning a salary greater than thirty thousand ($30,000.00) dollars the employee shall contribute" specified sums towards health insurance premiums;"

2. §5.2 of the ordinance provides that "prior public service to the State and/or a municipal subdivision thereof 'shall be deemed as service to the County for purposes of the benefits provided in this Ordinance,' and an employee 'shall be deemed to have an initial employment date with the County as of the original employment with the State and/or municipal subdivision thereof;'" and

3. After addressing how to credit prior public employment in the event there had been an interruption in public employment, the Ordinance states "All such prior public service to the State and/or a municipal subdivision thereof shall be considered as actual completed service to the County for purposes of this Ordinance and such . . . employee shall be deemed to have a initial employment date that reflects all prior public service form [sic] which appropriate benefits otherwise provided in this Ordinance shall be computed."

Nassau appealed the Supreme Court decision and its granting summary judgment to Plaintiffs. The Appellate Division affirmed the lower court's ruling, explaining:

a. §5.2 of the Ordinance does not mandate consideration of an employee's prior public service only for those benefits provided for in the ordinance which reference an employee's "actual completed service" to the County; it also mandates such consideration in determining an employee's "initial employment date" for the purposes of the benefits provided for in the ordinance;"

b. Accepting Nassau's construction of the Ordinance would render the provisions concerning an employee's "initial employment date" superfluous and, citing Universal Metal & Ore, Inc. v Westchester County Solid Waste Commission, 145 AD3d 46, said "[C]ourts must give effect to the wording of a statute without rejecting any words as superfluous, and must harmonize related provisions in a way that renders them compatible;"

c. When presented with a question of statutory interpretation, a court's "primary consideration is to ascertain and give effect to the intention of the Legislature" and courts  must first look to a statute's "plain language, as that represents the most compelling evidence of the Legislature's intent;" and

d. In the event the statute is ambiguous, the construction given to it by the administrative agency responsible for its administration should be sustained by the courts unless [i] the agency's interpretation is irrational, unreasonable, or inconsistent with the governing statute" except [ii] when a question is one of pure legal interpretation of statutory terms, deference to the agency is not required  and in such instances, courts should construe clear and unambiguous statutory language [so] as to give effect to the plain meaning of the words used.

In consideration of the Plaintiffs' prior public service, the court found that they all had effective "initial employment date[s]" with the County prior to January 1, 2002. Accordingly, the ordinance entitled them to have the County pay the full cost of their health insurance premiums, and the Supreme Court properly granted their motion for summary judgment on the declaratory judgment and breach of contract causes of action.

The Appellate Division then remitted the matter to the Supreme Court for the entry of a judgment declaring that [1] Nassau was not authorized to require Plaintiffs to pay any portion of the cost of the health insurance coverage provided to them by the County of Nassau and [2] Nassau is to reimburse Plaintiffs for any such payment made by Plaintiffs on or after April 12, 2004.

* Plaintiffs conceded that their damages were those damages incurred on or after April 12, 2004.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07110.htm

The judicial test for determining if a grievance involving a term or condition set out in a collective bargaining agreement is arbitrable

The judicial test for determining if a grievance involving a term or condition set out in a collective bargaining agreement is arbitrable

Matter of the Arbitration between Lewis County and CSEA Local 1000, AFSEME, AFL-CIO, Lewis County Sheriff's Employees Unit #7250-03, Lewis County Local 825, 2017 NY Slip Op 06743, Appellate Division, Fourth Department

The Lewis County Sheriff appointed one of three part-time dispatchers in the collective bargaining unit represented by CSEA Local 1000, AFSEME, AFL-CIO, Lewis County Sheriff's Employees Unit #7250-03, Lewis County Local 825 [Local 825] to the position of full-time dispatcher. Local 825 filed grievances on behalf of the two part-time dispatchers not selected for the full-time position, alleging that these two dispatchers had more seniority and experience than the part-time dispatcher selected for the full-time position by the Sheriff.

Lewis County denied the grievances and Local 825 filed demands for arbitration.* In response, Lewis County filed a CPLR Article 75 petition seeking a court order permanently staying the arbitration contending that the grievances were not the proper subject of arbitration." Supreme Court granted Lewis County's petition for a permanent stay of arbitration with respect to D.H.'s grievance and Local 825 appealed the ruling to the Appellate Division.

The Appellate Division said it agreed with Local 825 that Supreme Court erred in granting Lewis County's petition, explaining in City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, the Court of Appeals set out a two-pronged test to determine "whether a grievance is arbitrable."

Applying the first prong, usually referred to as "the may-they-arbitrate' prong," the court determines whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." If the court concludes that arbitration is not so prohibited, it proceeds and considers "the second prong, known as "the did-they-agree-to-arbitrate' prong," in which the court examines the collective bargaining agreement [CBA] "to determine if the parties have agreed to arbitrate the dispute at issue".

As Lewis County did not claim that the arbitration of D.H.'s grievance is prohibited because of a statutory, constitutional or public policy prohibition against arbitration of the grievance, the Appellate Division said that it was only concerned applying the second prong of the test set by the Court of Appeals in Johnstown Police, the "did-they-agree-to-arbitrate' prong,"

With respect this second test, the court said "[i]t is well settled that, in deciding an application to stay or compel arbitration ... the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim." Citing Matter of Van Scoy [Holder], 265 AD2d 806, the Appellate Division said that "[w]here, as here, there is a broad arbitration clause and a reasonable relationship 'between the subject matter of the dispute and the general subject matter of the parties' [CBA], the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them."

In this instance the grievance concerned the determination of the appointing authority with respect to which one of three employees should be given the full-time position. Holding that "a reasonable relationship exists between the subject matter of the grievance and the general subject matter of the CBA," the Appellate Division ruled that "it is for the arbitrator to determine whether the subject matter of the dispute falls within the scope of the arbitration provisions of the [CBA]."

* The demand for arbitration was withdrawn with respect to one of the part-time dispatchers. The Local's demand to compel arbitration on behalf of the remaining part-time dispatcher, D.H., survived.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06743.htm