Participating in an arbitration

Participating in an arbitration
Elmira Heights CSD v Ed. Support Staff Asso., App Div 250 A.D.2d 983, Motion for leave to appeal denied, 92 N.Y.2d 807

What should a party to an arbitration do if it believes that the controversy to be submitted to the arbitrator is not arbitrable? As the Elmira Heights decision points out, such an objection must be raised by applying for a stay of arbitration or it is waived.

The issue arose after the Elmira Heights Central School District, which was paying the entire cost of its health insurance plan for employees and retirees, negotiated a provision in the Taylor Agreement between the parties, Section 16.1, requiring employees to pay a “percentage of the annual premium for their health insurance coverage.” In contrast, health insurance for employees who retired was covered in another section of the same agreement, Section 16.14. Section 16.14 made no provision for health insurance contributions to be paid by individuals upon their retirement.

In January 1995 the school board adopted a resolution requiring all employees to pay 10 percent of the cost of their health insurance. The superintendent advised all retirees that they, too, would be required to pay 10 percent of the cost of their health insurance. The retirees filed a contract grievance complaining that the imposition of such a payment violated the terms and conditions of Section 16.14.

Ultimately the matter was submitted for arbitration. The arbitrator first found that the grievance was arbitrable. In the arbitration that followed, the arbitrator concluded that the district had violated the agreement when it unilaterally imposed a “co-pay for the health care plan for its retirees.” The district was directed to refund any contributions for premiums made by retirees.

Next the district filed an Article 75 action to vacate the award. Supreme Court granted the district’s petition, finding that the arbitrator “exceeded his authority,” and that the award was contrary to law. The Association appealed the decision. At the Appellate Division the district argued that the retirees were neither members of the negotiating unit nor employees as defined in the collective bargaining agreement and thus the arbitrator exceed his authority in ordering it to refund the retirees’ contributions.

The Appellate Division said that what the district was really arguing was that “the arbitrator did not have the power to decide the question at issue and, therefore, there was nothing to arbitrate.” The court ruled that such an argument cannot be raised in a motion to vacate the arbitration award; it must be raised in a motion to stay the arbitration in the first instance.

As to whether or not the arbitrator exceeded his authority, the decision notes that an arbitrator exceeds his or her power “only if he or she gave a completely irrational construction to the provision in dispute and, in effect, made a new contract for the parties.”

Here, said the court, the agreement provides for employee contributions for health insurance but is silent with respect to such contributions by retirees. The arbitrator considered the parties’ past practice and concluded that the district “inappropriately required its retirees to contribute to the cost of their health care ... a determination ... [the arbitrator] was well within his right to make.”

Pointing out that the fact that a different construction might have been given to Section 16.14 does not mean that the arbitrator rendered a completely irrational interpretation and thereby crafted a new contract for the parties, the Appellate Division denied the district’s application to vacate the award.

Use of polygraph tests in an administrative disciplinary hearing

Use of polygraph tests in an administrative disciplinary hearing
Ost v Town of Woodstock, Appellate Division, 251 A.D.2d 724, Motion for leave to appeal denied, 92 N.Y.2d 817

One of the issues raised in the Ost case was the admission of testimony concerning a polygraph [lie-detector] test during a Section 75 disciplinary hearing.

Shawn Ost, a Town of Woodstock police officer, was terminated from his position for allegedly using his police vehicle to “give a young civilian woman a ride to her home outside the geographical boundaries of the Town, without authorization and subjected her to unwanted sexual contact” [the August 1994 incident] and other charges and specifications concerning other alleged misconduct involving the same woman about a year later.

Ost argued that the disciplinary hearing “was tainted by the admission of testimony regarding a polygraph test” of the [young woman] involved in the incident. The Appellate Division said that such testimony may be considered in a Section 75 disciplinary hearing “if it is otherwise material and relevant, so long as there is ... as there was in this instance ... substantial evidence of the reliability of the machine and the qualifications of the operator.”

As to Ost’s complaint that “he was not offered an opportunity to take a similar test,” the court commented that although Ost indicated that he would be willing to submit to such an examination, he never asked for a test to be scheduled or take any steps to arrange for one on his own.

Another issue that was considered by the Appellate Division was the Town’s decision to dismiss Ost in the face of the hearing officer’s recommendation that he be reprimanded and suspended for 30 days without pay. It noted that initially the Supreme Court had rejected all of Ost’s arguments but one -- that the town had failed to set forth the rationale underlying its departure from the hearing officer’s findings and recommended penalty.

Subsequently the town explained its reasons for its decision -- it found that Ost had lied about his activities in August 1995, and “his testimony regarding the earlier incident was incredible as well.” The Appellate Division affirmed the town’s decision as to guilt and the penalty it imposed on Ost. It said that “reversal of the penalty would not be warranted for the Board explicitly found ... that [Ost’s] actions in August 1995, alone, necessitated his termination from the police force.”

Governor Paterson revokes his proclamations calling for extraordinary legislative sessions

Governor Paterson revokes his proclamations calling for extraordinary legislative sessions
Source: New York State Office of the Governor

On July 21, 2010, Governor David A. Paterson revoked his proclamations for the extraordinary sessions he issued on January 17, 2010 and June 26, 2010.

The Governor explained that “This revocation lays to rest spurious claims by both the Assembly and Senate that any prior extraordinary session convened by gubernatorial proclamation remains in progress."

Governor Paterson said that he stands "ready to convene a new extraordinary session of the Legislature pursuant to his authority under Article IV, Section 3 of the Constitution should he deem such an action necessary in the coming weeks.”

According to the Governor’s Office's statement, Article IV, Section 3 of the New York State Constitution gives the Governor broad and unambiguous legal authority "to convene the legislature, or the senate only, on extraordinary occasions."

This provision, said the Governor's Office, has been part of the New York State Constitution since it was first adopted on April 20, 1777.* “Since that time – more than 230 years and four constitutions later** – the provision remains virtually unchanged and imposes no requirement on the Governor to seek legislative permission before convening an extraordinary session.”

* Article XVIII of The Constitution of 1777, in pertinent part, provides that “[The Governor] shall have power to convene the assembly and senate on extraordinary occasions; to prorogue them [i.e., discontinue a session of a legislative body without dissolving it] from time to time, provided such prorogations shall not exceed sixty days in the space of any one year…."

In 1812, then Governor Daniel D. Tompkins [1807-1817; 1817-1825], pursuant to the authority set out in Article XVIII of the Constitution of 1777, "prorogued the legislature" -- the only recorded instance of a New York State governor exercising such power. The full text of the Constitution of 1777 is posted on the Internet at: http://www.nhinet.org/ccs/docs/ny-1777.htm

** New York State has had five constitutions, adopted in 1777, 1821, 1846, 1894, and 1938, respectively.

The full text of the Governor’s Office's statement is posted on the Internet at: http://www.ny.gov/governor/press/072110Session.html

Writ of mandamus unavailable to an individual seeking the removal of material from his or her personnel file where discretionary action involved

Writ of mandamus unavailable to an individual seeking the removal of material from his or her personnel file where discretionary action involved
Hazen v Board of Educ. of City School Dist. of City of New York, 2010 NY Slip Op 06142, Decided on July 20, 2010, Appellate Division, First Department

Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? The courts have held that characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to a Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. This appears to be the rationale underlying the ruling of the Appellate Division in Hazen.

Wendy Hazen filed a petition pursuant to CPLR Article 78 seeking a court order directing the New York City Board of Education “to expunge certain [critical] letters from [her] personnel file. Supreme Court denied Hazen’s petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that Hazen sought to compel the removal of the letters to which she objected from her file, which was an action in the nature of mandamus.

However, said the court, placing the letters in her personnel file and deciding whether or not to remove then when Hazen demand their being expunged, are essentially discretionary actions. Mandamus* is not an available remedy in situations involving an administrator’s discretionary action. It is an “extraordinary remedy” limited in its application to vindicate an individual's clear legal entitlement to a course of action.

Further, said the court, Hazen was not entitled to a hearing in this matter as the relevant provision in the controlling collective bargaining agreement sets out the teacher's due process rights to review and challenge entries in her personnel file. The court then found that “there is no reason to conclude that [the school district] failed to follow the procedural requirements imposed by that contract or otherwise acted unlawfully.

In addition, the Appellate Division noted that the actions objected to by Hazen “were not disciplinary or penalty measures related to the filing or disposition of formal charges” and thus she was not entitled to a hearing pursuant to Education Law §3020-a.

* Latin for "We command." The writ of mandamus is an order from a superior body to an inferior body ordering the inferior body [or an individual] to perform, or refrain from performing, a particular act.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06142.htm

Divorced retiree may enroll his or her new spouse for dependent coverage in the retiree’s health insurance plan as provided by the CBA

Divorced retiree may enroll his or her new spouse for dependent coverage in the retiree’s health insurance plan as provided by the CBA
Giblin v Village of Johnson City, 2010 NY Slip Op 06133, Decided on July 15, 2010, Appellate Division, Third Department

When William Giblin retired from his position with the Village of Johnson City, he continued his individual and dependent health insurance for himself and his then-wife pursuant to the terms of the relevant collective bargaining agreement [CBA]. The controlling provisions in the CBA provided that "[a]ll present retirees … and all members who retire in the future shall continue to receive Blue Cross, Blue Shield Major Medical Insurance coverage for themselves and their dependents (or comparable coverage as may then be in effect)."

Giblin and his then-wife divorced some time later. As the dependent health insurance coverage for Giblin’s former wife automatically terminated upon divorce, Johnson City terminated Giblin’s “family health insurance plan, switching him to an individual coverage plan.”

Some time later Giblin remarried and he asked Johnson City to enroll his new spouse in the City’s health insurance plan as his dependent. Johnson City refused to do so and advised Giblin that he “no longer had family coverage and was not entitled to change his [individual coverage] plan to family coverage.”

Giblin sued, seeking a court order to annul the City’s determination and a declaration that it was required to provide dependent health insurance coverage to his new spouse. Supreme Court annulled the City’s denial of Giblin’s request and directed the City to extend health insurance benefits to Giblin new spouse as his dependent. The City appealed.

The Appellate Division commenced its consideration of the City’s appeal by noting that while Giblin is challenging an action by a municipality, the damages claimed flow from an alleged breach of contract. Accordingly, said the court, "the claim must be resolved through the application of traditional rules of contract law" rather than under CPLR Article 78.

The court then concluded that the City had “breached its contractual obligation” to provide health insurance benefits to Giblin new spouse. Pointing out that the CBA states that Giblin, as a retiree, "shall continue to receive" health insurance coverage for himself and his dependents…” the court observed that “Nothing in the agreement freezes benefits so as to limit coverage to people who are dependents of a retiree at the time of retirement.”

Rejecting the City’s argument that the word "continue" in the CBA supports its determination, the Appellate Division said that “when the whole sentence is read in context it says that insurance coverage will continue for retirees and their dependents, not that retirees will continue to receive the same type of coverage (family or individual).”

Further, the Appellate Division commented that the CBA did not “specifically prohibit retirees from changing their enrollment from individual to family coverage or vice versa.”

The court explained that although Giblin’s former wife was no longer eligible for coverage when they divorced, Giblin “did not request a change to individual coverage and, when he remarried, he merely desired to continue receiving family coverage as he had at the time of his retirement.”

Reading the plain language of the CBA, the Appellate Division decided that Giblin was entitled to a declaration that City must provide dependent health insurance coverage to Giblin new spouse.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06133.htm