Participating in an arbitration may bar extrication from the process

Participating in an arbitration may bar extrication from the process
Suffolk County v Faculty Asso. of SCCC, App. Div., 247 A.D.2d 472

Suppose a party appears at a grievance arbitration but later decides that it didn’t have to. May it ask to have the arbitration award vacated?

This was the significant issue in the Suffolk County case. The Appellate Division indicated that once a party has appeared in an arbitration and a decision had been rendered, it may be too late for the party to extricate itself the process.

Suffolk County participated in a grievance arbitration proceeding involving the Faculty Association of Suffolk County Community College. The county challenged the arbitration and won a court order vacating the award made by the arbitrator after persuading a New York State Supreme Court justice that “there was no agreement to arbitrate the grievance in question” between the parties.

The Faculty Association appealed and the Appellate Division reversed the lower court’s ruling, reinstating the award. The Court said, “the absence of an agreement to arbitrate is not a basis upon which a party who participated in the arbitration may seek to have the resulting award vacated.”

The Court also rejected the County’s alternative argument, in which it contended that the arbitration award violated public policy, on a technical ground. Why? Because, said the Court, the County did not raise the “public policy” argument in its motion to vacate the arbitration award at the Supreme Court level. Accordingly, the County’s “public policy” theory was not properly before it on appeal.

Selected bills recently signed into law

Selected bills recently signed into law
Source: New York State Legislature

Chapter 423 of the Laws of 2010: Provides that employers who provide funeral leave for family members of deceased shall not deny such leave for same-sex committed partners of the deceased.

Chapter 426 of the Laws of 2010: Requires New York City school districts to notify parents of bedbug infestations.

Chapter 430 of the Laws of 2010: Relates to health insurance coverage for surviving spouses or domestic partners of members of the New York City Department of Correction.

Chapter 480 of the Laws of 2010: Relates to the residence of peace officers employed as fire protection inspectors, urban park rangers and traffic enforcement agents level IV by a city with a population over one million [i.e., the City of New York].

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State Comptroller’s report concludes that Office of Mental Health's “contracting out” for personnel and other services not adequately monitored

State Comptroller’s report concludes that Office of Mental Health's “contracting out” for personnel and other services not adequately monitored
Source: Office of the State Comptroller, Audit 2009-S-42

The State Comptroller’s auditors found that the Office of Mental Health (OMH) had 819 state-funded contracts for personal and miscellaneous services during a three-year audit period totaling $61.7 million.

The focus of the audit: Was OMH adequately justifying the need to initially contract out for such services and then periodically reassessing whether such contracts could be deferred, eliminated or reduced. The report indicates that “this was not adequately done.”

A sample of 50 of the 819 Service Contracts was selected for study. The auditors reviewed available documentation to determine whether the need for the services and the decision to contract for services was justified with supporting documentation.

According to the Comptroller’s report, OMH was able to demonstrate that it had formally evaluated and justified the need for only 15 of these 50 contracts totaling $13.5 million. The Department did not produce documentation showing that it formally evaluated the justification for the remaining 35 contracts, which totaled $48.2 million.

Although OMH officials agreed that all of the decisions pertaining to contracting for Services were not documented, they indicated that "this is not a feasible task, as decisions are made at many levels in many forms." OMH said that it believe it had effectively communicated the intent of the relevant budget bulletins to all OMH divisions and facilities. The auditors, in contrast, said they “did not find sufficient evidence that OMH had contracted out only when there was a clearly documented need for the services.”

The contracts involved providing for mental health services, information technology, maintenance, and security services.

The full text of the Comptroller’s report is posted on the Internet at:
http://osc.state.ny.us/audits/allaudits/093010/09s42.pdf
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Politically motivated removals from public employment

Politically motivated removals from public employment
Coogan v Smyers, et al, CA2, 134 F.3d 479

In a series of rulings concerning the removal of public employees for political reasons, the U.S. Circuit Court of Appeals, Second Circuit [New York] set out a number of tests and guidelines it uses to determine if a particular termination is Constitutionally permissible. The Coogan case involved the termination of a City Clerk by a City Council.

James A. Coogan, who had served as Tonawanda’s City Clerk for five consecutive two-year terms, sued members of the City of Tonawanda after the new Republican council majority decided not to reappoint him for another two-year term.

According to Coogan, the Council’s action was motivated by his political activities on behalf of the Democratic Party. Claiming that his civil rights were violated, Coogan filed his action pursuant to 42 USC 1983 and argued that the Council’s action violated his First and Fourteenth Amendments rights.

The Circuit Court of Appeals reversed a federal District Court judge’s dismissal of Coogan’s petition and remanded the matter to the lower court for its further consideration. The Circuit Court pointed out that:

1. As a general rule, a public employee is protected from adverse employment decisions based upon the employee’s exercise of his or her First Amendment rights.

2. Political patronage or party affiliation is impermissible reasons for dismissing government employees absent a showing that “party affiliation is an appropriate requirement for the effective performance of the public office involved.”

3. While there is no property interest or entitlement to be reappointed to a government position, failure to reappoint solely because of party affiliation is impermissible.

Ironically, the Tonawanda City Clerk’s position historically has been one filled through political patronage. While the Court conceded that Coogan himself may have enjoyed a patronage appointment, this fact is irrelevant: a history of patronage does not render the practice Constitutional.

Coogan claimed that the only legal way to take away his job was to have reasons relating to his job performance. The Circuit Court said this was simply incorrect. The only Constitutional limit placed on a city council’s appointment power is that it may not make employment decisions based upon an employee’s protected conduct.

In cases of this type, courts frequently use a “burden-shifting” test. This requires that the individual first establish, by a preponderance of the evidence, that:

(1) his or her political activities constituted a substantial or motivating factor in the employment decision; and

(2) his or her conduct on behalf of a particular political party was constitutionally protected. If the individual is able to do this, the burden of going forward shifts to the employer, which must prove by a preponderance of the evidence that it would have made the same employment decision notwithstanding the individual’s protected conduct.

A critical element in this case was the parties’ stipulation that the City Clerk’s position is a non-policymaking and non-confidential government position. Therefore, political party affiliation could not be required for effective service as City Clerk. On this point the Court referred to the U.S. Supreme Court’s decision in Branti v Finkel, 445 U.S. at page 518.

Also, the Court emphasized the significance of the fact that the City Clerk’s position was not tenured -- it carried a two-year term. Coogan was merely a “prospective employee” and he had no property right or entitlement to the position or reappointment to it.

Accordingly, the Council was not required to “show cause” for failing to reappoint him. The Constitutional prohibition on patronage dismissal “does not give a permanent appointment to the City Clerk.” The legislative body is always free to dismiss or fail to rehire the Clerk for legitimate, apolitical reasons.

However, if a nontenured employee like Coogan shows there was unlawful political motivation in the failure to reappoint, the burden shifts to the legislative body to show a lawful reason for its decision. The Circuit Court said that if a public employer has two reasons for an employment decision, one lawful (e.g. incompetence) and one unlawful (e.g. removing a person because of some Constitutionally protected speech he or she made), the employment decision may be upheld on the basis of the lawful reason. The Court called this the “dual-motive” test.

The Circuit Court agreed with the District Court that Coogan’s political activity and affiliation were “a substantial or motivating factor” in the Council’s decision not to reappoint him.

But the Circuit Court disagreed with the District Court’s conclusion that the Council “presented sufficient evidence to demonstrate that they would not have reappointed Mr. Coogan regardless of his active participation in the Democratic Party.”

The Circuit Court decided that “the present record is inadequate” to enable it determine if the Coogan would have been denied reappointment regardless of his political affiliation or activity. Therefore, it remanded the case for further findings of fact by the trial court. The District Court was directed to analyze the reasons underlying the reasons given by the individual Council members for their votes concerning Coogan’s reappointment.

In another decision handed down by the U.S. Circuit Court of Appeals, Second Circuit, Danahy v. Buscaglia, 134 F.3d 1185, the Court said that a public employer was entitled to a qualified immunity from law suit for patronage dismissals if the employer was reasonable in making its decision with respect to whether or not the employees terminated qualified as “the kind of policymaking and confidential employees who may be lawfully dismissed because of their political views.”

The case involved the dismissal of seven former employees of the Attorney General’s Medicaid Fraud Unit who claimed that their terminations were politically motivated in violation of their First Amendment Rights.

The full text of the decision may be found at:
http://nypublicpersonnellawarchives.blogspot.com/ [Registration required]

Sick building syndrome

Sick building syndrome
Knapp v Vestal CSD, App Div, 247 A.D.2d 667,

From time to time there are reports of individuals becoming ill because of the quality of a building’s environment. This can result in the filling of a workers’ compensation claim.

Donna K. Knapp, a music teacher employed by the Vestal Central School District, filed such a complaint. She claimed that her health began to deteriorate after working in the Vestal Central School District’s African Road School for about a year.

Knapp said that her symptoms included “aches and pains, headaches and memory and hearing loss.” Initially diagnosed as suffering from “sick building syndrome,” she was later diagnosed as having “multiple chemical sensitivity.”

Contending that the African Road School was a “sick building,” Knapp applied for workers’ compensation benefits. Ultimately the Workers’ Compensation Appeals Board disallowed Knapp’s claim, ruling that the record did not demonstrate any “unusual workplace hazard” to support her application for accidental injury due to a hazardous exposure. The Board said that there was “no evidence presented to support a recognizable link between [Knapp’s] multiple chemical sensitivity and her occupation as a teacher.”

The Appellate Division affirmed the Board’s determination. The Court observed that to prevail Knapp had to establish an unusual environmental condition or something extraordinary which caused an accidental injury even if she could not pin-point the exact date on which the event occurred.

Concluding that Knapp failed to show that she sustained an accidental injury, the Court dismissed her appeal. In so doing, the Appellate Division commented that Knapp’s theory that the African Road School was “a sick building” was undercut by the fact that she admitted that she experienced similar symptoms at other locations.

In contrast, the Appellate Division ruled that the Workers’ Compensation Board’s decision that New York City school teacher Morris Palevsky suffered a “posttraumatic stress disorder” as a result of his being injured in the course of a fight between students at a school for emotionally disturbed children was supported by evidence in the record and dismissed the City’s appeal from urging a reversal of the Board’s ruling [Palevsky v New York City Board of Education, 246 AD2d 836, lv to appeal dismissed, 92 NY2d 876, lv denied, 93 NY2d 818) ].