Placing an employee on leave without pay upon the initiation of a disciplinary action against the employee

Civil Service Law §75.3-a, suspension pending determination of charges and penalties relating to police officers of the Police Department of the City of New  York [Department] served with disciplinary charges, provides that a New York City police officer may be placed on leave without pay for a maximum of 30 days while awaiting a hearing on the disciplinary charges. Thereafter the police officer's name must be restored to full pay status on the payroll. 

However, in the event of a delay in the disciplinary hearing beyond the 30-day maximum is occasioned solely by the police officer's own conduct, the police officer may be placed on, or continued on, leave with out pay or again removed from the payroll, as the case may be, until such time as the appointing authority is otherwise able to go forward with disciplinary hearing. 

In contrast, where the appointing authority is solely responsible for the delay, or the parties are equally responsible for the delay, the police officer's name is to be restored to the payroll after the 30-day period of leave without pay authorized by §75.3-a has been exhausted.

In this action the Appellate Division said it agreed with the Department that the police officer [Petitioner] was not entitled to reinstatement to the payroll, or eligible for back pay, for any time he was taken off the payroll in excess of 30 days, because Petitioner was solely responsible for the delay in the disciplinary hearing going forward. 

The Appellate Division, citing Gerber v New York City Housing Authority, 42 NY2d 162, explained that because Petitioner failed to take certain necessary action "the entire period of delay in holding the [disciplinary] hearing resulted from his dilatory tactics."

In the alternative, in the event an individual served with disciplinary charges fails or refuses to participate in the disciplinary hearing without good cause, the appointing authority may elect to proceed to conduct the disciplinary hearing as scheduled "in absentia."

It is well-settled that should the employee fail to appear at the disciplinary hearing as scheduled, the appointing authority may elect to proceed with the disciplinary action and actually hold a hearing in absentia rather then merely proceed to impose a penalty on the individual simply because of the employee's failure to appear as scheduled [see Mari v. Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 613]. 

As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066,  “due process does not require that [the charged employee] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that in the event the employee fails to appear at the disciplinary hearing as scheduled, the appointing authority make a diligent effort to contact the employee to inform him that the scheduled disciplinary hearing would take place even if he did not participate and determine if the individual had a reasonable explanation for his failure to appear at the disciplinary hearing as schedule.. 

Further, the charging party must prove its case by presenting substantial evidence of the employee’s incompetence or misconduct in the course of a disciplinary hearing held in absentia.

On the other hand, there is case law holding that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority or its representative and make a final, binding determination and award. The appointing authority had boycotted a scheduled arbitration hearing because it believed that the employee was not entitled to submit the matter to arbitration. In Matter of Hall, 235 AD2d 75, the Appellate Division sustained the arbitrator’s award in favor of the employee.

The instant decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2020/2020_04103.htm

Seeking public documents and records pursuant to New York State's Freedom of Information Law

The basic concept underlying New York State's Freedom of Information Law [FOIL] is that all government documents and records, other than those having access specifically limited by statute, are available to the public.* Although the custodian of the records or documents requested may, as a matter of an exercise of discretion, elect to deny access to  documents and records that are within the ambit of the several exceptions to disclosure authorized by FOIL, as the Court of Appeals noted in Matter of Madeiros v New York State Educ. Dept., 30 NY3d 67, FOIL "is based on a presumption of access in accordance with the underlying premise that the public is vested with an inherent right to know and that official secrecy is anathematic to our form of government."

Petitioner's union had submitted a FOIL request seeking "complete copies of any communications" between a named respondent or the New York Police Department [herein after jointly "NYPD"] and the Mayor or the Mayor's Office related to an incident in which the Petitioner was involved. The union also sought "complete copies of any documents" related to a NYPD task force convened to review NYPD's emotionally disturbed person [EDP] policy and to make recommendations for changes thereto. NYPD denied the union's request in its entirety, claiming an exemption to avoid interference with a law enforcement investigation or judicial proceeding at the both the NYPD FOIL Unit's level and at the NYPD's Records Access Appeals Officer's level. Petitioner then initiated this proceeding.

The Appellate Division, noting that a second NYPD decision involving the same administrative appeal produced over 3,200 pages of responsive documents, with numerous redactions, but  462 pages were withheld under color of exemption as inter- and intra-agency material, said that NYPD, with respect to the redactions, relied on "exemptions for nonroutine criminal investigation techniques and preserving the integrity of agency information technology assets."

NYPD also advanced claims of "protection of individuals' privacy and safety, and the attorney-client privilege," which Petitioner did not challenge. 

Petitioner, however, did challenge challenged NYPD's reliance on the law enforcement exemption which it had not earlier raised. After Petitioner filed an amended petition challenging NYPD's reliance on exemptions not previously raised, NYPD cross-moved to dismiss Petitioner's action, asserting that the proceeding was moot and contended that the proceeding was in the nature of mandamus. 

Although Supreme Court had granted  NYPD's cross motion, the Appellate Division reversed the lower court's ruling.

Initially addressing NYPD's challenge to Petitioner's standing to maintain this action, the Appellate Division, citing Matter of Fleisher v New York State Liq. Auth., 103 AD3d 581, leave to appeal denied 21 NY3d 856, rejected NYPD's argument, explaining that Petitioner's union had filed the FOIL request on Petitioner's behalf and NYPD specifically referenced Petitioner in their administrative appeal determinations.

The Appellate Division then ruled that "This proceeding is not in the nature of mandamus to compel the disclosure of documents under the Freedom of Information Law [FOIL]."** Thus, said the court, the standard of review is whether the denial of the FOIL request was "affected by an error of law." Accordingly, said the court citing Matter of Madeiros v New York City Educ. Dept., 30 NY3d 67, its judicial review was limited to the grounds for denial of the documents and materials demanded invoked by NYPD in its administrative determinations.

As NYPD had abandoned the exemption raised in its initial decision, the Appellate Division concluded that it cannot meet its burden to "establish that the ... documents [qualify] for the exemption," nor did NYPD "make any contemporaneous claim that the requested materials" fit its newly claimed exemptions. In the words of the court, "to allow [it] to do so now would be contrary to [Court of Appeals] precedent, as well as to the spirit and purpose of FOIL."

Rejecting NYPD's contention to the contrary, the Appellate Division held that the disclosure of certain documents did not moot this proceeding as the agency had still withheld many of the documents and materials sought by Petitioner and Petitioner had challenged the bases for both [1] NYPD's failure to produce such documents and materials and [2] the redactions made by NYPD to the documents NYPD did disclosed.

The Appellate Division, however, held that Petitioner's demand for the metadata*** of documents disclosed must be denied as an agency is only required to produce "a record reasonably described" and a FOIL request for "complete copies" of communications and documents cannot fairly be read to have implicitly requested metadata associated with those records.

Further, said the court, Plaintiff's reliance on a Fourth Department case, Matter of Irwin v Onondaga County Resource Recovery Agency, 72 AD3d 314, in which that court held that a request for "all computer records that are associated with published [photographs]" should be produced was misplaced as Petitioner's request in the instant matter is distinguishable from the request considered by the court in Irwin and the Fourth Department's "decision is limited to the facts of [the Irwin] case."

Noting that Petitioner had "substantially prevailed"**** even prior to this appeal as NYPD made "no disclosures, redacted or otherwise, prior to Petitioner's commencement of this ... proceeding," and Petitioner "ultimately succeeded in obtaining substantial ... post-commencement disclosure responsive to [Petitioner's] FOIL request," the Appellate Division remanded the matter to Supreme Court for it:

1. To determine if there are any necessary redactions in all documents disclosed, both before entry of judgment and as a result of this decision, pursuant to the exemptions based upon invasions of personal privacy, preserving the safety of persons, and the attorney-client privilege, as well as the Supreme Court's consideration of Petitioner's request for attorneys' fees and litigation costs; and

2. To determine whether there was a reasonable basis for the NYPD to deny access based on the claimed law enforcement exemption, and if not, to "assess" fees and costs" consistent with the provisions of Public Officers Law §89[4][c][ii]."

* Release of certain public records are limited by statute such as the prohibitions set out in  Education Law §1127 - Confidentiality of records; §33.13 of the Mental Hygiene Law - Confidentiality of clinical records; and Civil Rights Law §50-b(1) prohibiting public inspection of material "in the custody or possession of any public officer or employee" identifying a victim of a sex offense as defined by Penal Law Article 130.

** The extraordinary remedy of mandamus will lie only to compel the performance of a ministerial act, and only where there exists a clear legal right to the relief sought (see Matter of Legal Aid Socy. of Sullivan County v Scheinman , 53 NY2d 12.

*** Metadata is data that in most information technology usages means "an underlying definition or description."

**** The Appellate Division noted that Petitioner "ultimately succeeded in obtaining substantial ... post-commencement disclosure responsive to [Petitioner's] FOIL request."

The decision is posted on the Internet at:   http://www.nycourts.gov/reporter/3dseries/2020/2020_04007.htm

Typically courts are bound by the arbitrator's factual findings, interpretation of the contract and decision with respect to the remedies provided by the award

The collective bargaining representative  [TCBR] of the teachers of a school district filed a grievance with the school board [Board] on behalf of teachers assigned to certain integrated co-teaching classrooms contending that such assignments increased class sizes in violation of certain provisions set out in the collective bargaining agreement [CBA] between the parties. Ultimately TCBR filed a notice of intent to arbitrate the alleged violations of the CBA and the Board and the TCBR  stipulated that the issue of whether the increased class sizes violated certain Articles in the CBA would be submitted to arbitration.

After conducting a hearing, the arbitrator determined that the increased class sizes violated two of the several Articles in the CBA that TCBR  had alleged the Board had violated. As redress, the arbitrator awarded additional compensation to the affected teachers for the relevant time period. The District then commenced a proceeding pursuant to CPLR Article 75 seeking a court order vacating the arbitration award. Supreme Court denied the Board's petition to vacate the arbitration award and confirmed the award. The Board filed a timely appeal challenging the Supreme Court's ruling.

The Appellate Division affirmed the Supreme Court's decision, opining that judicial review of arbitration awards is extremely limited. 

Citing  Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, the court explained that an arbitration award may not be vacated unless it shown to violate a strong public policy,  is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power. Further, said the Appellate Division, "A party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence."

Noting that courts are bound by the arbitrator's factual findings, the arbitrator's interpretation of the contract and the arbitrator's decision with respect to the remedies to be provided an injured party, the Appellate Division observed that "A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one." Tthe court pointed out that in New York State Correctional Officers and Police Benevolent Association v State of New York, 94 NY2d 321, the Court of Appeals stated that "courts will not assume the role of overseers to conform the award to their sense of justice."

Agreeing with the Supreme Court's determination that the arbitrator's award was neither irrational nor violative of public policy, nor did the arbitrator exceed a specifically enumerated limitation on his authority, the Appellate Division sustained the Supreme Court's determination denying the Board's  petition to vacate the arbitration award and its confirmation of the arbitrator's award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03909.htm