Vacating an arbitration award based on allegations that the arbitrator was not impartial

Vacating an arbitration award based on allegations that the arbitrator was not impartial
Meehan v Nassau Community College, App. Div., 251 A.D.2d 417, Motion for leave to appeal dismissed, 92 N.Y.2d 946

This item summarizes a number of related decisions involving the same parties considered by the Appellate Division.

Article 75 of the Civil Practice Law and Rules [CPLR] sets out very limited grounds upon which a party who has either participated in an arbitration, or has been served with a notice of intention to arbitrate, may ask the courts to vacate or modify the award. In order to vacate an award, the court must find that the rights of the moving party were prejudiced by:

1. Corruption, fraud or misconduct in procuring the award; or

2. Partiality of an arbitrator appointed as a neutral, except where the award was by confession; or

3. An arbitrator, or agency or person making the award exceeded his or her power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or

4. The failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

Nassau County Community College sought to overturn two arbitration awards under Article 75.

The first, referred to by the Appellate Division as the “overload arbitration,” involved a complaint by the Nassau County Community College Adjunct Faculty Association that the college had assigned certain “overload courses” to members of the full-time faculty, rather than employ members of the adjunct faculty to teach these courses.

The second award, the “History Department” arbitration, involved persons who lacked certain academic credentials teaching in that department.

In both cases the college asked the court to vacate the award because one member of a three-person arbitration panel selected by the parties had direct personal knowledge of the disputed facts underlying the grievances and that this arbitrator testified concerning these facts during the arbitration. This conduct by the arbitrator, the College urged, justified overturning the arbitration panel’s award in favor of the Association.

The contract grievance procedure relevant between the parties provided that the arbitration panel would consist of “one member selected by the College Administration, one selected by the Adjunct Faculty Association, and a third selected by mutual consent.”

According to the ruling, the Association’s designated member of the arbitration panel testified at the arbitration that because of “the assignment of various overload courses, more senior adjunct instructors had been `bumped’ by less senior full-time instructors” as well as other matters at issue. The College argued that “[a]rbitrator Loiacono demonstrated partiality and engaged in misconduct when he testified in support of the [union’s] position” at the arbitration.

In “overload courses” award the Appellate Division rejected the college’s argument, holding that “that the CPLR does not authorize vacatur on this ground.” According to the Appellate Division, the terms of CPLR 7511(b)(ii), which specify that the “partiality” of an arbitrator “appointed as a neutral” may be a basis for vacatur, imply that the “partiality” of a party-designated member of an arbitral board may not be the basis for vacatur.

The Appellate Division said “a party-designated arbitrator may in fact be `partial’“ and that by itself this is not grounds for vacating an arbitration award. Nor did the Appellate Division have any problem with a panel member testifying at the hearing.

This ruling may have a significant impact in Section 3020-a disciplinary appeals, which now are processed pursuant to CPLR Article 75 rather than CPLR Article 78 as was the case before Section 3920-a was amended in 1984. Syquia v Harpursville Central School District, 568 NYS2d 263 involved the alleged partiality of members of a disciplinary panel convened under the “old” Education Law Section 3020-a.

The attorney for Harpursville had advanced the argument that “a 3020-a hearing is, and is intended to be, something other than a fully impartial fact finding hearing, and that the panel members selected respectively by the Board of Education and by the teacher are advocates for the party respectively selecting them, with only the Chairman intended to be impartial.”

A state Supreme Court justice said that this was a misunderstanding in educational circles, “if such in fact exists.” The court declared that it was a “misapprehension that in 3020-a hearings the panel member selected by the Board is the `Board’s representative,’ and the panel member selected by the teacher is the `teacher’s representative,’ and only the Chairman is expected to be neutral and impartial.” According to the Meehan decision, this is no longer the case.

In the Nassau decision, [decided pursuant to Article 75 of the CPLR, rather than Article 78, the court held that a party-designated arbitrator may, in fact, be partial. Accordingly, said the court, Mr. Loiacono’s participation in the arbitration proceedings in the dual capacity of arbitrator and witness may serve as a basis for vacatur only if his behavior in this regard can be properly characterized as constituting corruption, fraud, or misconduct within the meaning of CPLR Section 7511[b][1][i].

Holding that Loiacono’s behavior could not be so characterized, the court confirmed the award. Nor was the “overload course” award held to be violative of public policy. According to the decision, a collective bargaining agreement limiting the college’s ability to assign courses in excess of a specified amount did not interfere with its ability to establish qualifications for its faculty.

In contrast, in the “History Department” aspect of the appeal the Appellate Division decided that the award, “which requires the college to reinstate the grievants, although it is undisputed that they were unqualified to teach courses in the History Department because of their lack of certain academic credentials,” should be vacated. This, however, was not because of Loiacono’s testimony and his participation as an arbitrator in the arbitration proceedings. Rather, said the court, the award had to be vacated because it violates public policy.

The court explained that although not every arbitration under a Taylor Law agreement “that threatens to limit the management prerogatives [of a public employer] is violative of public policy,” here the award’s mandate affected the college’s authority to establish the qualifications of its adjunct faculty and thereby affect the maintenance of academic standards in the classroom.

Multiple Section 75 thirty-day suspensions without pay are permitted if additional disciplinary charges are subsequently filed against the employee

Multiple Section 75 thirty-day suspensions without pay are permitted if additional disciplinary charges are subsequently filed against the employee
Figueroa v NYS Thruway Authority, App. Div., 251 A.D.2d 773

The New York State Thruway Authority filed a series of four charges against Gladys Figueroa, its Affirmative Action Administrator. Each time it suspended her without pay for 30 days pending the completion of the disciplinary action as permitted by Section 75 of the Civil Service Law.

In a number of instances the suspensions overlapped pending disciplinary actions because she was served with new charges before a hearing was completed on earlier charges based on new alleged acts of misconduct.

The first hearing officer found Figueroa guilty and recommended a 60-day suspension without pay; a second hearing officer found her guilty and recommended she be given a reprimand. Before the hearings to resolve the third and fourth disciplinary sets of charges commenced, Figueroa resigned.

Figueroa sued, challenging the findings of the hearing officers with respect to the first and second set of charges and the lawfulness of her four 30-day suspensions without pay. She also asked for back pay and benefits or, in the alternative, new hearings.

According to the Appellate Division, in most instances the hearing officer found Figueroa guilty based on her own admissions. Among the examples of such admissions cited by the court: Figueroa admitted that she had deliberately read confidential material after being told not to; that she left the building after being told to wait outside a supervisor’s office; and that she did not return “excess” travel advances to the Authority in a timely manner.

As to the four suspensions, the court pointed out that Section 75.3 allows an employer to suspend an employee without pay for up to 30 days without pay. It said that it was not persuaded that it was improper to suspend Figueroa “on each of the four separate occasions when she was charged with misconduct.”

The Appellate Division distinguished Figueroa’s situation from that where the appointing authority “has deliberately severed charges for the sole purpose of imposing multiple suspensions.” It noted that the second, third and fourth suspensions resulted from events that occurred after Figueroa had returned from work following the earlier suspensions and resulted in new charges of misconduct being filed against her. However, said the court, Figueroa was still entitled to hearings on the third and fourth sets of charges filed against her because “her resignation neither terminated the proceedings” with respect to those charges nor “obviated [the] adjudication of them.”

Accordingly, the court ruled that hearings on these charges should be held. It also said that Figueroa “if so inclined [may] pursue an action for back pay.”

The Appellate Division pointed out, there was no evidence that Figueroa’s resignation constituted a waiver or abandonment of her claims for back salary.

Assigning a disabled police officer to a “desk job” held to be a reasonable accommodation

Assigning a disabled police officer to a “desk job” held to be a reasonable accommodation
Keever v Middletown, 145 F.3d 809

According to the U.S. Circuit Court of Appeals, Sixth Circuit, providing a “desk job” as a reasonable accommodation to a disabled police officer satisfied Americans with Disabilities Act [ADA] accommodation requirements despite the fact that the officer preferred a different assignment.

Richard T. Keever, a Middletown, Ohio police officer, contended that the desk assignment was demeaning and involved reduced responsibility. He said that he should have either been given a different shift or assigned to a detective position. He sued, contending claiming that the City failed to accommodate his disability, unlawfully harassed him about his disability, and constructively discharged him from the force by forcing him to retire.

The court disagreed, finding no ADA violation. ADA, the court observed, does not require an employer to give an employee his or her “preferred accommodation.” Under ADA the employer can make any reasonable accommodation it determines to be fit and appropriate.

According to the Sixth Circuit, “in determining whether an accommodation is reasonable, the employer must consider (1) the particular job involved, its purpose, and its essential functions; (2) the employee’s limitations and how those limitations can be overcome; (3) the effectiveness an accommodation would have in enabling the individual to perform the job; and (4) the preference of the employee,” citing 29 CFR Section 1630.9(a).

Essentially the court concluded that Keever was not “otherwise qualified” for the position of patrol officer, that he was not constructively discharged, and that he failed to establish a prima facie case of hostile work environment discrimination.

This ruling, made under federal law, may prove relevant to making “light duty” assignments of personnel receiving disability benefits under Section 207-a or Section 207-c of New York’s General Municipal Law [GML].

As was noted in City of Cohoes v Local 2562, 94 NY2d 686, “light duty” is based on the non-working individual’s medical condition and physical capacity rather than upon any contractual requirement. “GML Section 207-a is properly understood as being independent of contractual provisions governing regular duty, by giving full pay to fully or partially disabled firefighters performing no work or only `light duty.’“

In the words of the Court of Appeals:

"Our conclusion that appellants must submit medical evidence contesting the City's physician's findings in order to trigger a hearing is also supported by the holdings, in other contexts, that due process does not require a hearing on a claimed invasion of a property or liberty interest in governmental employment, until the employee has raised a genuine dispute on operative facts (see, Codd v Velger, 429 US 624, 627; Matter of Economico v Village of Pelham, 50 NY2d 120, 128; Matter of Dolan v Whalen, 49 NY2d 991, 993). Thus, the Appellate Division properly rejected appellants' claim of entitlement to a due process hearing before being ordered to return to duty.”

The Cohoes decision, however, implies that light duty could be viewed as a “permissive subject” of collective bargaining under the Taylor Law and ultimately made subject to arbitration under the terms of the agreement.

State Comptroller’s report of the use of contacts for personal and other services by the NYS Department of Taxation and Finance

State Comptroller’s report of the use of contacts for personal and other services by the NYS Department of Taxation and Finance
Source: Office of the New York State Comptroller Thomas P. DiNapoli

During the three-year audit period, the Department of Taxation and Finance had 81 contracts for personal and miscellaneous services totaling about $563 million. More than 98 percent of this amount related to contracts for either information technology or banking services.

Auditors examined whether the department was adequately justifying the need to initially contract out for such services and periodically reassessing whether such contracts could be deferred, eliminated or reduced to save state funds.

The auditors found that the department was sometimes but not always performing these activities.

The full text of the audit report is posted on the Internet at: http://osc.state.ny.us/audits/allaudits/093010/09s38.pdf

US Department of Labor to conduct Family Medical Leave Act study

US Department of Labor to conduct Family Medical Leave Act study
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

On July 21, 2010 Labor Secretary Hilda Solis announced that next year the U.S. Department of Labor will conduct a study of how families use Family Medical Leave Act [FMLA] leave, as well as "information on regulatory changes, among other things."

In the past, DOL studies have been a precursor to regulatory changes. While there is no mandatory format, past FMLA studies have been a combination of surveys of significant FMLA stakeholders combined with public solicitations of comments. Interested parties should take this as a "heads-up" to begin to think about and prepare to address what you like about the current regulatory regime, and what you would like to see changed.

The announcement also suggests that the DOL does not intend on making any regulatory changes before the upcoming mid-term elections this November, something of a surprise (at least to me).