Filing of an amicus brief with PERB

Filing of an amicus brief with PERB

Selected Rulings posted by PERB  – Matter of the County of Suffolk, Decision U-28610

The Board granted motions by the Police Conference of New York and the Suffolk County Police Conference to file amicus briefs* with respect to exceptions from an ALJ decision dismissing a charge alleging that the County of Suffolk violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it unilaterally transferred supervisory police duties previously performed on the Long Island Expressway and Sunrise Highway by the members of the Supervisor Officers’ Association of the Police Department of the County of Suffolk. 

* This decision reflects PERB’s view that an amicus brief may be valuable during consideration of pending exceptions. 

Failing to provide for the timely removal of a contested writing from an employee's personnel file or record is not fatal to filing §3020-a charges against the employee

Failing to provide for the timely removal of a contested writing from an employee's personnel file or record is not fatal to filing §3020-a charges against the employee

The arbitrator found a New York City school teacher guilty of various specifications filed against her pursuant to §3020-a of the Education Law. The penalty imposed: a four months' suspension of employment without pay and benefits.

Supreme Court denied a New York City school teacher’s petition seeking to vacate a post-hearing arbitration award brought pursuant to Education Law §3020-a(5) and CPLR 7511, unanimously affirmed, without costs.

In affirming the lower court’s ruling, the Appellate Division said that the arbitration award had been made in accord with due process and was not arbitrary and capricious, irrational, or lacking in evidentiary support, citing City School District v McGraham, 17 NY3d 917.

In response to the teacher’s challenge to the award on the theory that the New York City Department of Education [DOE] had failed to meet the time requirements set forth in Article 21(C)(3) of the collective bargaining agreement, the Appellate Division said the even if DOE had failed to comply with such time requirements “dismissal of the disciplinary charges against the educator was not required.

Article 21(C)(3), explained the court, “merely provides for the removal of a contested writing from an employee's personnel file or record in the event the procedural requirements of the Article are not followed.” Accordingly, such a defect “does not preclude the filing of formal disciplinary charges pursuant to Education Law §3020-a.”

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division said that “The penalty imposed does not shock our sense of fairness,” and dismissed the educator’s appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03879.htm

======================

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1528 page e-book. For details click on http://thedisciplinebook.blogspot.com/

======================

Terminated probationer not entitled to a pre-termination hearing

Terminated probationer not entitled to a pre-termination hearing

The Appellate Division affirmed a Supreme Court’s ruling dismissing an Article 78 petition filed by a former employee challenging his termination from his position during his probationary period.

In dismissing the former employee’s appeal the Appellate Division said that “It is well-settled that a probationary employee may be discharged without a hearing and without a statement of reasons, in the absence of any demonstration that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation of law, citing Swinton v Safir, 93 NY2d 758.

In this instance, said the court, evidence in the record regarding the individual’s unsatisfactory completion of his duties provide a rational basis for the employer’s determination, “particularly since petitioner received ample opportunity to improve.”

As there was nothing substantial in the former employee’s allegations purporting to show bad fait, the Appellate Davison held that no hearing was required and the petition was properly denied by Supreme Court.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03875.htm