An employee’s satisfying the employer’s residency requirement is critical to his or her continuation in employment

An employee’s satisfying the employer’s residency requirement is critical to his or her continuation in employment

Matter of Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 92 AD3d 1272, affirmed.

The City of Niagara Falls’ Local Law No. 7 requires City employees to establish and maintain residency within the City throughout the term of their employment. "Residency" for the purposes of this action was defined as "the actual principal place of residence of an individual, where he or she normally sleeps; normally maintains personal and household effects; the place listed as an address on voter registration; and the place listed as his or her address for driver's license and motor vehicle registration, if any."*

The City determined that one of its employees [Petitioner] principally resided outside the City in the Town of Niagara. Concluding that Petitioner did not comply with its residency policy, the City terminated her employment.

Petitioner challenged the City’s decision. Supreme Court granted her petition and directed the City to reinstate her to her former position. The Appellate Division disagreed with the Supreme Court’s ruling and vacated its decision.

The Appellate Division found that the evidence relied upon by the City was sufficient to establish that Petitioner's "actual principal place of residence" was in the Town of Niagara [Niagara] and thus outside the city limits of the City of Niagara Falls.

The evidence presented to the City included an investigative report indicating that Petitioner resided at the Niagara residence, the address of the Niagara residence was listed on Petitioner's joint tax return with her husband, Petitioner's signature appeared on a recent mortgage application for the Niagara residence, Petitioner's husband and children resided at the Niagara residence and Petitioner’s children attend school in the Niagara-Wheatfield School District.

In addition, said the Appellate Division, “a surveillance company observed Petitioner on multiple occasions driving to work from the Niagara residence early in the morning and driving from work to the Niagara residence at the end of the work day, "whereupon she would retrieve the mail and park in the garage."

Petitioner had testified that she resided at a City address and that the City address was listed on various documents, including her voter registration records and her driver's license. Notwithstanding such testimony, the Appellate Division concluded that such "evidence was not so overwhelming as to support the [Supreme] court's determination granting [her] petition."

Citing Beck-Nichols v Bianco, 20 N.Y.3d 540,** a case involving a school district employee’s failure to comply with the district’s residence requirement, the Appellate Division said that under the "extremely deferential standard" of review applicable in Petitioner’s case, it concluded that the City's determination that Petitioner principally resides outside the City is not “without foundation in fact,” and thus the City had "rationally concluded that [Petitioner] did not comply with the residency policy."

The court then reversed Supreme Court's decision "on the law" and the dismissed the City's former employee’s petition.

* The Appellate Division noted that this “definition [of residence] is akin to, if not synonymous with, the legal concept of ‘domicile,’ i.e., ‘living in [a] locality with intent to make it a fixed and permanent home.’”

** NYPPL’s summary of Beck-Nichols is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2013/02/court-of-appeals-holds-that-residency.html

The City of Niagara Falls decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03230.htm

An employee’s satisfying the employer’s residency requirement is critical to his or her continuation in employment

An employee’s satisfying the employer’s residency requirement is critical to his or her continuation in employment

Matter of Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 92 AD3d 1272, affirmed.

The City of Niagara Falls’ Local Law No. 7 requires City employees to establish and maintain residency within the City throughout the term of their employment. "Residency" for the purposes of this action was defined as "the actual principal place of residence of an individual, where he or she normally sleeps; normally maintains personal and household effects; the place listed as an address on voter registration; and the place listed as his or her address for driver's license and motor vehicle registration, if any."*

The City determined that one of its employees [Petitioner] principally resided outside the City in the Town of Niagara. Concluding that Petitioner did not comply with its residency policy, the City terminated her employment.

Petitioner challenged the City’s decision. Supreme Court granted her petition and directed the City to reinstate her to her former position. The Appellate Division disagreed with the Supreme Court’s ruling and vacated its decision.

The Appellate Division found that the evidence relied upon by the City was sufficient to establish that Petitioner's "actual principal place of residence" was in the Town of Niagara [Niagara] and thus outside the city limits of the City of Niagara Falls.

The evidence presented to the City included an investigative report indicating that Petitioner resided at the Niagara residence, the address of the Niagara residence was listed on Petitioner's joint tax return with her husband, Petitioner's signature appeared on a recent mortgage application for the Niagara residence, Petitioner's husband and children resided at the Niagara residence and Petitioner’s children attend school in the Niagara-Wheatfield School District.

In addition, said the Appellate Division, “a surveillance company observed Petitioner on multiple occasions driving to work from the Niagara residence early in the morning and driving from work to the Niagara residence at the end of the work day, "whereupon she would retrieve the mail and park in the garage."

Petitioner had testified that she resided at a City address and that the City address was listed on various documents, including her voter registration records and her driver's license. Notwithstanding such testimony, the Appellate Division concluded that such "evidence was not so overwhelming as to support the [Supreme] court's determination granting [her] petition."

Citing Beck-Nichols v Bianco, 20 N.Y.3d 540,** a case involving a school district employee’s failure to comply with the district’s residence requirement, the Appellate Division said that under the "extremely deferential standard" of review applicable in Petitioner’s case, it concluded that the City's determination that Petitioner principally resides outside the City is not “without foundation in fact,” and thus the City had "rationally concluded that [Petitioner] did not comply with the residency policy."

The court then reversed Supreme Court's decision "on the law" and the dismissed the City's former employee’s petition.

* The Appellate Division noted that this “definition [of residence] is akin to, if not synonymous with, the legal concept of ‘domicile,’ i.e., ‘living in [a] locality with intent to make it a fixed and permanent home.’”

** NYPPL’s summary of Beck-Nichols is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2013/02/court-of-appeals-holds-that-residency.html

The City of Niagara Falls decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03230.htm

Where there is broad arbitration clause in the collective bargaining agreement, the arbitrator rather than the court is to determine if the subject of the dispute is arbitrable

Where there is broad arbitration clause in the collective bargaining agreement, the arbitrator rather than the court is to determine if the subject of the dispute is arbitrable

Ontario County v County Sheriff's Unit 7850-01, CSEA, Local 1000, AFSCME, AFL-CIO), 2013 NY Slip Op 03204, Appellate Division, Fourth Department

The Collective Bargaining Agreement [CBA] between Ontario County and the Ontario County Sheriff's Unit 7850-01 provided that disputes over the meaning or application of the CBA were initially required to be submitted through the contract's grievance process. In the event the employee was "not satisfied" with the result obtained through that process, the Unit could submit the matter to arbitration .

The Ontario County Sheriff's Unit 7850-01 [Unit] filed grievances on behalf of two correction officers whose request for a shift exchange was denied. Contending that the denial "[v]iolated or [i]nvolved" the clause in the CBA that addressed "time exchanged between employees," the Unit informed County of its intent to seek arbitration. 

The County thereupon filed a petition in Supreme Court pursuant to CPLR Article 75 to stay arbitration and the Unit "cross-moved" to compel arbitration.

Supreme Court denied the County’s petition and granted the Unit’s cross motion.

The Appellate Division affirmed the Supreme Court’s ruling, noting that “A grievance may be submitted to arbitration only where the parties agree to arbitrate that kind of dispute, and where it is lawful for them to do so." In this instance,” said the court, “the parties do not challenge the lawfulness of arbitrating the instant dispute and, instead, [the County contends] that there is no valid agreement to arbitrate the grievances at issue inasmuch as the CBA did not contemplate shift exchanges."

The Appellate Division rejected the County’s argument, explaining that in determining whether the parties agreed to arbitrate the dispute at issue a court’s review “is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom"

In this instance, said the court, 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.” Accordingly, the court decided that the was arbitrable and it was left to the arbitrator to 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.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03204.htm

Governor Cuomo's financial restructuring proposal to assist distressed local governments

Governor Cuomo's financial restructuring proposal to assist distressed local governments

On May 14, 2013, Governor Andrew M. Cuomo issued a proposal to create a Financial Restructuring Board to help distressed local governments manage their finances. The proposal includes an alternative binding arbitration process that municipalities and unions could voluntarily opt for to resolve contract issues in an expedited procedure.

In the words of the Governor: "Growing retirement costs, declining populations, decreasing property values, and the recent fiscal crisis have all contributed to the difficult financial issues facing localities today …The Financial Restructuring Board will bring together state and local officials to help localities make tough decisions and solve this crisis now instead of kicking the can down the road."

More money is not the solution to help local governments solve their fiscal issues said the Governor. “The State's existing Aid and Incentives for Municipalities (AIM) program does not reflect local government need or performance, and already constitutes a large percentage of the budgets of New York's largest cities (outside of NYC)”

The proposal to help fiscally distressed municipalities includes the following elements:

Financial Restructuring Board: The Board would include the State Budget Director, Secretary of State, Attorney General, Comptroller, and one private sector restructuring professional. The Budget Director would establish standards to determine which local governments qualify as fiscally distressed. Fiscally distressed local governments would be able to request the assistance of the Board, and work together to identify a specific restructuring plan.

Implementing Restructuring Plan: The 2013-14 Budget includes up to $80 million to assist local governments with reorganization plans. Recommendations of the Board would be binding upon any municipality that accepts funding. The Board may require development of multi-year financial plans, functional consolidation, mergers, shared services, fewer elected officials, and other measures.

The Board would also serve as a binding arbitration panel: The Board would provide an alternative to the binding arbitration process for police, fire, or deputy sheriff unions if municipalities and unions agree. The Board would render an arbitration ruling within 9 months.