Disciplinary arbitrator may consider hearsay evidence and unsworn testimony in making his or her determination

Disciplinary arbitrator may consider hearsay evidence and unsworn testimony in making his or her determination

The Appellate Division held that an arbitration award that resulted in the termination of the employee was made in accordance with due process; was supported by adequate evidence; and was rational and not arbitrary and capricious.

Citing Gray v Adduci, 73 NY2d 741, the court noted that "[h]earsay evidence can be the basis of an administrative determination." 

In addition, the Appellate Division said that unsworn testimony by witnesses to the incidents that led to the filing of disciplinary charges and the employee’s own testimony acknowledged the incidents, while offering differing exculpatory accounts thereof, supported the hearing officer’s determination.

As to the penalty imposed, termination, the court said that it did not find dismissal “so disproportionate to the multiple specifications upheld [the employee] with verbal and physical abuse of students and faculty members as to shock our sense of fairness, even considering the mitigating factors of [the employee’s] recurrent health issues.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02802.htm

Court vacates hearing officer’s determination for failure to comply with the agency’s rules and regulations

Court vacates hearing officer’s determination for failure to comply with the agency’s rules and regulations

This decision by the Appellate Division demonstrates that administrative due process applies in cases where a prisoner is charged with alleged misconduct and a disciplinary proceeding is conducted.

In this instance a prisoner was found guilty of certain alleged offences and a penalty of 90 days in solitary confinement and restitution of $100 was imposed. The individual appealed.

The Appellate Division, reversing a lower court’s ruling to the contrary, granted the prisoner’s petition and [1] annulled the determination of the hearing officer, [2] dismissed the charges against the individual and [3] directed the New York City Department of Correction “to expunge all references to the charges from [the individual’s] institutional records.”

The court found that hearing officer failed to provide accused with a written statement summarizing the testimony of three witnesses who testified in his favor and failed to state her reasons for rejecting the testimony of those witnesses and of the accused, in violation of relevant directives of the New York City Department of Correction. The Appellate Division said that the agency “is required to comply with its own regulation.”

Considering a procedural issue, the Appellate Division held that although the Department contended that the prisoner had failed to exhaust his administrative remedies, it would not consider that defense because the Department had failed to raise that claim it its answer.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02947.htm

Determining if a grievance resulting from an alleged violation of a collective bargaining agreement is subject to arbitration

Determining if a grievance resulting from an alleged violation of a collective bargaining agreement is subject to arbitration

In the Matter of the Arbitration between the Village of Horseheads and the Horseheads Police Benevolent Assn., Inc., 2012 NY Slip Op 02543, Appellate Division, Third Department

The Appellate Division, affirming a lower court’s ruling, said that the role of the court in reviewing an application to stay arbitration is limited. In determining if a particular grievance is subject to arbitration, the court must first determine if the parties may lawfully arbitrate the underlying dispute and, if so, whether they did in fact agree to so arbitrate the issue.

In this instance the Village of Horseheads did not contend that there was a statutory, constitutional or public policy prohibition against arbitrating this particular grievance. Accordingly, the sole issue for the court to determine was whether or not the parties, in accordance with the terms of the collective bargaining agreement, agreed to arbitrate the grievance presented by the Police Benevolent Association.

The relevant collective bargaining provision, said the court, defined a grievance as "any claimed violation, misinterpretation or inequitable application of existing laws, rules, procedures, regulations, application or enforcement of the terms of this agreement, administrative orders or work orders or rules of [the Village]."
Whether the Village’s action constituted an actual violation of a rule or regulation "goes to the merits of the grievance [itself], not to its arbitrability," said the court. Accordingly, this was an issue for the arbitrator to resolve.

In contrast, the Appellate Division emphasized that “For purposes of [its] limited inquiry, it [was] sufficient that [the Association had] asserted a ‘claimed violation’ of certain rules and regulations and that a ‘claimed violation’ is, in turn, subject to the grievance procedure set forth in the CBA “

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02543.htm