A name clearing hearing available if adverse allegations are shared with another agency or administrator without the assurance of confidentiality

A name clearing hearing available if adverse allegations are shared with another agency or administrator without the assurance of confidentiality
Vandine v Greece Cent. School Dist., 2010 NY Slip Op 06059, Decided on July 9, 2010, Appellate Division, Fourth Department

Douglas W. Vandine commenced filed a petition pursuant to CPLR Article 78 seeking a court order directing the Greece CSD to hold a name-clearing hearing with respect to allegations associated with his termination from his probationary position with the district.

Supreme Court dismissed Vandine’s petition but the Appellate Division ruled that this was incorrect.

The Appellate Division noted that in the event "a government employee is dismissed for stigmatizing reasons that seriously imperil [his or her] opportunity to acquire future employment, the individual is entitled to an opportunity to refute the charge” if he or she demonstrates that there "has been a public disclosure by the employer of stigmatizing reasons for the discharge."

Typically, said the court, “the submission of a complaint to the New York State Department of Education (SED) based upon the allegations underlying [Vandine's] termination does not constitute such a public disclosure.”

Here, however, the court decided that although a confidential communication with an authorized governmental administrator or agency does not constitute public disclosure, here SED may determine that, based on allegations in the complaint, there exists a substantial question concerning Vandine's moral character that ultimately could result in the revocation of his teaching certificate. Accordingly the Appellate Division concluded that as 8 NYCRR 83.1 et seq,. the applicable regulations, do not specifically provide for confidentiality, there is a potential for public disclosure sufficient to establish Vandine's entitlement to a name-clearing hearing.

Reversing the lower court’s decision, the Appellate Division explained that a name clearing hearing was justified because under the controlling regulations Vandine would be given a hearing on the complaint submitted to SED by the school district only if a determination is made that the allegations raise a substantial question concerning his moral character.

Accordingly, the Appellate Division ruled that as Vandine is not guaranteed a hearing on the complaint, he may be foreclosed from any opportunity to refute the allegations absent a name-clearing hearing held by the school district.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06059.htm

The three-year statute of limitations for disqualifying an employee pursuant to Civil Service Law §50(4) does not apply in cases involving fraud

The three-year statute of limitations for disqualifying an employee pursuant to Civil Service Law §50(4) does not apply in cases involving fraud
Urciuoli v Department of Citywide Admin. Servs., 2010 NY Slip Op 05876, Decided on July 1, 2010, Appellate Division, First Department

The New York City Department of Citywide Administrative Services advised Gerard Urciuoli that it was retroactively rescinding its approval his application for employment as a New York City police officer and decertifying that he was qualified for such an appointment, thereby effectively terminating his employment. Urciuoli was also advised that he could appeal the Department of Citywide Administration’s determination to the New York City Civil Service Commission.

Instead of appealing to the Commission, Urciuoli opted to file his appeal with Supreme Court. Supreme Court dismissed his petition and the Appellate Division affirmed the lower court’s ruling, explaining that Urciuoli had failed to exhaust his administrative remedies, thus foreclosing judicial review of the matter.

As to Urciuoli claim that “under Civil Service Law §50(4), respondents were required to rescind his application within three years of the triggering event,” the court said that it “declined to review that claim in the interest of justice….” However, said the Appellate Division, as “an alternative holding,” it found that the also lacks merit.

§50(4), said the court, permits the disqualification of an employee beyond three years in the event of an applicant's fraudulent misstatement or omission of material facts. Here documentary evidence amply established that Urciuoli “deliberately concealed his arrest in Jamaica in connection with charges that he possessed, was dealing in, and tried to export a significant quantity of marijuana.”

The Appellate Division said that this “deliberate concealment and omissions of relevant information” were designed to fraudulently ensure that he obtained, and then retained, his employment as a police officer, and justified his termination.

§50(4), in pertinent part, provides that “Notwithstanding the provisions of this subdivision or any other law, the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his application, examination or appointment, may revoke such eligible's certification and appointment and direct that his employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud [emphasis supplied].

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05876.htm

Determining whether a provision in a collective bargaining agreement is subject to arbitration

Determining whether a provision in a collective bargaining agreement is subject to arbitration
Matter of Village of Johnson City v Johnson City Firefighters Assn., Local 921 IAFF, 2010 NY Slip Op 06034, decided on July 8, 2010, Appellate Division, Third Department

The collective bargaining agreement between the Johnson City Firefighters Association, Local 921 IAFF and the Village of Johnson City included a grievance procedure that provided that disputes "involving the interpretation or application of any provisions of [the CBA]" are subject to binding arbitration.”

Other provisions in the collective bargaining agreement provided that the Village [1] will not "lay-off any member of the bargaining unit" and [2] is not "required to 'back fill' hire additional members to meet staffing level of expired agreement."

When the Village Board voted to eliminate the then vacant position of Assistant Chief, Local 921 filed a grievance and ultimately served a demand for arbitration upon the Village and the Public Employment Relations Board.

The Village filed a petition in Supreme Court seeking to permanently stay the arbitration. Supreme Court holding that the grievance filed by the Local was subject to arbitration, denied the Village's application to stay arbitration, and granted the Union's cross claim to compel arbitration. The Village appealed the Supreme Court’s ruling.

The Appellate Division said that a two-part test is used to determine whether a grievance may be arbitrated: [1] Is there is any statutory, constitutional or public policy prohibition against arbitration of the grievance? and [2] Does the CBA indicate that the parties have agreed to arbitrate the dispute at issue?

Applying the first test, the Appellate Division said that contrary to the Village's claim that arbitration of the issue is barred, “Although public employers have the ‘undisputed management prerogative’ to eliminate civil service positions … ‘it is clear that a public employer is permitted to voluntarily agree to submit controversies over staff size or minimum staffing levels to arbitration.’"

Citing its decision in a recent dispute involving the same CBA, Matter of Johnson City Professional Firefighters Local 921 [Village of Johnson City], 72 AD3d 1235, in which it held that no conflict with Civil Service Law §80 or other statutory, decisional, or public policy prohibition barred arbitration of the Local's grievance against the Village's abolition of six firefighters' positions, the Appellate Division said that it found “no reason to conclude otherwise here.”

Turning to the second prong of the test, “did the parties have agreed to arbitrate the dispute at issue," the court said the decision turns on “whether the parties have so agreed is limited to determin[ing] whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

Pointing out that the elimination of the vacant title of Assistant Chief caused no firefighter to lose employment and that the Local “concedes that the clause in the CBA providing that the Village will ‘not lay-off any member of the bargaining unit’ is not implicated,” the Appellate Division said that it could not agree that there was any "reasonable relationship" between the parties' dispute and any provision of the CBA.

The court also rejected the Local’s theory that eliminating the Assistant Chief position could potentially violate the CBS's out-of-title work provision if the Village assigned a firefighter to carry out the Assistant Chief's duties, holding that such an argument “is entirely speculative on this record.”

In the words of the court: “The CBA requires arbitration of any grievance involving the interpretation or application of any of its provisions. The CBA does not refer, explicitly or implicitly, to the elimination of vacant positions; thus, resolution of the parties' dispute does not involve interpreting or applying any of its provisions, and no breach of the CBA has been effectively alleged. In such circumstances, even a broad clause like the one at issue here cannot be construed to require arbitration.”

Reversing Supreme Court’s granting the Local cross-petition demanding arbitration, the Appellate Divisions said that Village’s application to stay arbitration was improperly denied and granted its petition to stay arbitration.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06034.htm

Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively

Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively
Matter of Rosenblum v New York City Conflicts of Interest Bd., 75 AD3d 426

When the New York City Office of Administrative Tribunals and Hearings attempted to conduct an administrative hearing involving Stephen Rosenblum’s alleged infraction of the City’s “conflict of interest” law, Rosenbaum obtained a court order from Supreme Court in the nature of a writ of prohibition.

The Appellate Division affirmed the lower court’s determination, holding that Supreme Court properly ruled that Rosenbaum could seek a judgment prohibiting the enforcement of the conflict of interest law of the City of New York against him through an OATH proceeding as he was a “tenured pedagogue employed by the Board of Education of the City of New York.”

The Appellate Division explained that “the exclusive avenue to discipline a tenured pedagogue is Education Law §3020-a and thus it would be violative of the Education Law to allow an OATH hearing which does not require the same procedural protections as those provided to a tenured educator by §3020-a.

In addition, the decision notes that there was no requirement for exhaustion of administrative remedies as a condition precedent in an Article 78 proceeding “in the nature of a writ of prohibition,” where, as here, the "legality of the [underlying OATH] proceeding itself" was implicated.”

The writ of prohibition is one of a number of the ancient “English 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 English common law writs include 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 injunction - a judicial order preventing a public official from performing an act; 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 common law writs.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05875.htm

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Continuation of employment in a position upon its jurisdictional reclassification to the competitive class

Continuation of employment in a position upon its jurisdictional reclassification to the competitive class
Matter of Civil Serv. Employees Assn., Inc., Local 1000, AFSCME, AFL-CIO v Mennillo, 38 A.D.3d 1113

Suzanne Burns was permanently appointed to the noncompetitive position of computer aide by the City of Schenectady in 2000. About four years later the Schenectady County Civil Service Commission jurisdictionally reclassified the position into the competitive class. The Commission then told Burns that she would be required to qualify by competitive examination in order to continue in the jurisdictionally reclassified position.

Burns sued, contending that she attained permanent competitive status when her position was jurisdictionally reclassified from the noncompetitive class to the competitive class. Supreme Court ruled that Burns was entitled to continue in her position as a computer aide without examination, despite the jurisdictional reclassification of the position to competitive. The Appellate Division agreed.

The Appellate Division rejected the Schenectady Civil Service Commission’s contention that Burns had to qualify by competitive examination to attain permanent competitive status in the reclassified position. Citing Matter of Bell v County of Warren, 111 AD2d 428, the court said that “Civil service employees, in the noncompetitive class, whose positions are subsequently reclassified into the competitive class may continue in their positions without examination.”*

According to the ruling, the record demonstrated that despite reclassification, Burns' job and responsibilities remained unchanged during her four years in the position.**

Accordingly, the Appellate Division ruled that Burns was entitled to maintain her employment without successfully completing a civil service examination, even though the position has been jurisdictionally reclassified from noncompetitive class to competitive class.

* See, also, Fornara v Schroeder, 261 NY 363. In Fornara the court said that an individual lawfully appointed to a position that is jurisdictionally reclassified to the competitive class is continued in the competitive class position without further examination.

** Jurisdictional classification and jurisdictional reclassification involve determinations placing positions in the classified service in the competitive, exempt, noncompetitive or labor classes [Section 2.10, Civil Service Law]. In contrast, position classification involves the evaluation of the duties and responsibilities of a position and placing it in a group of positions with a common and descriptive title [Section 2.11, Civil Service Law]. Positions in the unclassified service, consisting essentially of elected officials, the members and staffs of legislative bodies, department heads and educators are described in Section 35 of the Civil Service Law