Employee disciplined for allegedly violating agency rules

A New York City sanitation worker [Worker] was found to have violated agency rules by being absent without leave, improperly taking emergency leave, failing to immediately report an accident, failing to report to the clinic as required, performing an unauthorized pickup, and disobeying an order. 

Of the 15 alleged violations of agency rules, only six were sustained.

OATH Administrative Law Judge John B. Spooner recommended that Worker be suspended four days for each sustained violation, for a total of 24 days, reasoning that none of the violations were serious or shown to be disruptive to the unit operations and that the large number of dismissed violations suggested that a few supervisors issued complaints without sufficient justification.

The Appointing Authority adopted Judge Spooner’s findings and recommendations.

The decision is posted on the Internet at:
http://archive.citylaw.org/wp-content/uploads/sites/17/oath/20_cases/20-120.pdf

Seeking a court order limiting the scope of a public official's inquiry

The Nassau County Comptroller' issued a press release announcing the audit of the "finances and operation" of the Town of Hempstead's  animal shelter. The press release indicated that the audit was "precipitated after receiving alarming complaints" alleging "animal neglect, unnecessary deaths, unsanitary conditions, and unqualified staff."

In a proceeding pursuant to CPLR Article 78 characterized as being in the "nature of prohibition,"*the Town's counsel had argued that "any authority of the County Comptroller to audit the Town or its departments was limited to an examination of financial affairs." The County Comptroller, on the other hand, contended that he was authorized to undertake not only financial audits, but also "performance audits" as well.

Supreme Court's ruling prohibited the Comptroller him from "acting in excess of his jurisdiction" and quashed certain subpoenas issued by him served on the Town of Hempstead Animal Shelter.

Finding that the County Comptroller's authority to audit the Animal Shelter was limited to "a fiscal examination only," and that the subpoenas, to the extent they sought information beyond "an examination of [the animal shelter's] balance sheets/budget evidencing its income and expenditures," fell outside the scope of his authority, ruled that the County Comptroller's authority to audit the animal shelter was limited to "a fiscal examination only" and quashed the subpoenas that sought information beyond "an examination of [the animal shelter's] balance sheets/budget evidencing its income and expenditures."

The Comptroller appealed and the Appellate Division said that it disagreed with the Supreme Court's conclusion that certain of the materials which were the subject of the subpoenas fell outside of the County Comptroller's subpoena and audit authority.

The court explained that the Nassau County Charter provides that the County Comptroller shall "examine and audit of his own motion or when directed to do so by resolution of the County Legislature, the accounts and records of any town or special district and make reports from time to time when requested by the County Executive or County Legislature on the financial condition of the county or any [and] all of its political subdivisions."

Further, the Appellate Division noted that the Charter provided that several County officials, including the County Comptroller, "shall have the power to . . . compel the attendance of witnesses and the production of books and papers." Notwithstanding the Town's contentions to the contrary, the Appellate Division said that "under the plain language of the Charter, the County Comptroller's general authority to "examine and audit . . . accounts and records," citing Charter §402[6], "which may be exercised sua sponte, is not restricted by the subsequently stated authority to make reports on financial conditions upon request."

The court opined that "the broad language of the Charter" signifies that the powers and duties conferred upon the County Comptroller "go beyond the verification of financial records and internal controls" and, citing McCall v Barrios-Paoli, 93 NY2d 99, concluded that the Town "failed to demonstrate that the County Comptroller was proceeding in excess of his authority or jurisdiction."

* The writ of prohibition is one of number of the ancient “common law” writs and is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction."  Other such ancients writs include the writ of injunction - a judicial order preventing a public official from performing an act; the writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform; "the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00284.htm

Applying the "relations back" doctrine in an Article 78 action to cure a respondent's claim that the petition was untimely filed

The petitioners in this CPLR Article 78 action relied on the "relations back" doctrine for the purposes the court having assume jurisdiction in the matter. The Appellate Division explained reliance on the relations back doctrine requires that the Article 78 petitioner establish:

1. "that the claims arose out of the same occurrence;

2. "that the later-added respondent[s] [were] united in interest with a previously named respondent;, and

3. "that the later-added respondent[s] knew or should have known that, but for a mistake by petitioner as to the later-added respondent[s'] identity, the proceeding would have also been brought against [them]."

In this instance the issued on which the parties focused was the third prong of this test.

The genesis of the Article 78 action was a collective bargaining representative [Union] filing two improper employer practice charges against the Employer with the Public Employment Relations Board [PERB]. A PERB Administrative Law Judge [ALJ], following a hearing, issued a decision finding that the Employer guilty of one charge but dismissed the other charge. 

The Employer filed exceptions to the ALJ's ruling and, after an administrative appeal, PERB reversed the ALJ's determination. The Union then commenced a CPLR Article 78 solely against PERB seeking to annul its determination. Subsequently, however, the Union filed an amended Article 78 petition adding the Employer as respondents as well as PERB. The Employer contended that the amended petition was untimely, whereupon the Union argued that its petition was timely, relying on the relation back doctrine. PERB submitted a reply arguing that if Supreme Court agreed with the Employer's untimeliness objection, the amended petition should be dismissed against it due to the Union's failure to join necessary parties. 

Supreme Court dismissed the amended petition insofar as asserted against the Employer, finding that it was untimely filed and transferred the remaining portion to the Appellate Division in accordance with CPLR §7804[g]).

The Appellate Division observed "that the record fails to disclose that the failure to name the [Employer as] respondents in the original petition was due to a mistake as to their identity. The explanation provided by [the Union] was that it did not believe that the [Employer] were necessary parties to the proceeding." Citing Windy Ridge Farm v Assessor of Town of Shandaken, 45 AD3d 1099, affd 11 NY3d 725, the Appellate Division explained that such a mistake is a mistake of law not contemplated by the relation back doctrine."

In the words of the court, "[g]iven that [the Union] was aware of the [Employer's] existence and 'failed to appreciate that [they] were legally required to be named in proceedings of this type', [the Union's] reliance on the relation back doctrine is unavailing."

As the Employer was necessary parties to this proceeding and it demonstrated that the amended petition was not timely commenced against it, the Appellate Division ruled that the amended petition must also be dismissed insofar as asserted against PERB in view of the timeline involved in perfecting the Union's underlying Article 78 action. The Appellate Division then dismissed the Union's amended petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00199.htm