Reviewing body must have jurisdiction to consider disciplinary appeals

Reviewing body must have jurisdiction to consider disciplinary appeals
Montella v Bratton, Court of Appeals, 93 NY2d 424

Although Section 75 of the Civil Service Law sets out what is probably the best-known statutory procedure for initiating disciplinary action against employees in the classified service, other statutory procedures are available for this purpose.* The Montella decision by the Court of Appeals points out the fact that one must consider the basis for the underlying disciplinary action in order to determine the body having jurisdiction to consider appeals.

Peter Montella, a New York City police officer, was served disciplinary charges pursuant to Section 14-115 of New York City’s Administrative Code following his testing positive for drugs. Found guilty, Montella was dismissed from the force.

As a result of litigation challenging the disciplinary action, Montella obtained a second hearing, only to again be found guilty and dismissed. This time, however, Montella filed his appeal with the New York City Civil Service Commission rather than challenge the determination in court by filing an Article 78.

The Commission reversed Montella’s dismissal and ordered his reinstatement.

Although the department had participated in Montella’s appeal before the Commission, it subsequently refused to reinstate Montella and asked the Commission to “withdraw its determination because [the Commission] lacked subject matter jurisdiction to hear appeals from discipline imposed pursuant to the Administrative Code.”

The Commission rejected the department’s application, taking the position that “the Legislature intended Section 76 to provide alternative appeal routes for disciplined civil service employees, regardless of their position ... [and that] in the absence of explicit language precluding appeal by Police Officers” it had authority to review departmental discipline taken against officers pursuant to Section 14-115 of the City Code.

Montella sued to compel the department to comply with the Commission’s directive while the department filed a petition to have the Commission’s determination annulled on the ground that the Civil Service Commission lacked subject matter jurisdiction to entertain Montella’s appeal.

Did the Commission have jurisdiction to hear and decide appeals by uniformed police officers disciplined pursuant to section 14-115 of the Administrative Code of the City of New York?

The Court of Appeals ruled that because the Civil Service Law explicitly limits the Commission’s jurisdiction to appeals from discipline imposed pursuant to Civil Service Law Section 75, and because punishment imposed by the New York City Police Commissioner pursuant to Section 14-115 is not the same as disciplinary action pursuant to Section 75, the New York City Civil Service Commission did not have jurisdiction to hear Montella’s appeal.

The decision points out that “the Civil Service Law further evidences the Legislature’s intention that New York City police officers be disciplined pursuant to the Administrative Code,” rather than pursuant to Section 75 when it amended Section 75 by adding subdivision 3-a which provides that if “such officer is found guilty of the charges, the police commissioner of such department may punish the police officer pursuant to the provisions of sections 14-115 and 14-123 of the administrative code of the city of New York.” This, the Court of Appeals concluded, acknowledges that New York City police officers are disciplined pursuant to a statutory scheme separate and distinct from Civil Service Law Section 75.

Civil Service Law Section 76(4) provides that nothing “contained in Section 75 or 76 “shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division.”

The court concluded that the Commission was not authorized to hear Montella’s appeal and its determination was void.

* In some instances an alternative to Section 75 disciplinary action has been negotiated in accordance with Section 76 of the Civil Service Law. In such cases the “contract disciplinary procedure” will typically set out the appeal procedure to be followed.
NYPPL

Timely filing of a grievance

Timely filing of a grievance
Hill v NYC Board of Ed., 258 AD2d 462

A collective bargaining agreement provided that an employee must file a grievance “within a reasonable period not to exceed 75 days following the action complained of.” The agreement also provided that an arbitration panel “shall be without power or authority to make any decision ... contrary to, or inconsistent with, or modifying or varying in any way, the terms of this agreement....”

Stanley W. Hill filed a grievance that involved various events, some of which were less than 75 days old and some of which were more than 75 days old. The arbitration panel assumed jurisdiction, ruling that the 75-day period of limitations ran from “when the grievant ‘discovered’ the infraction.” It then upheld Hill’s grievance.

The Board of Education filed an Article 75 petition [Article 75, Civil Practice Law and Rules] seeking to have the award vacated on the grounds that the arbitration panel “exceeded an express limitation of its powers.” This is one of the few grounds set out in Article 75 that would allow a court to vacate an arbitration award.

The Appellate Division sustained the board’s determination. However, the court noted that part of the award covered a portion of the grievance that was filed within the Statute of Limitations. It confirmed that portion of the award. However, the court vacated the rest -- all redress based on events occurring more than 75 days prior to his filing of his grievance.
NYPPL

Conviction for sick leave fraud upheld

Conviction for sick leave fraud upheld
People v Patino, 259 AD2d 502 [see, also, 259 AD2d 502]

The Appellate Division upheld the conviction of Robert Patino, a former Nassau County police officer, who was found guilty of grand larceny and defrauding the government in connection with his claim of disability in order to obtain sick leave benefits.

The Appellate Division said that Patino was not entitled to sick leave benefits simply because he “followed administrative procedures” as the evidence established that he “intentionally and wrongfully obtained more than $3000 in sick leave benefits from the Police Department by fraudulently misrepresenting his ailments or illnesses.”

Also rejected was Patino’s claim of “selective prosecution” because of the police department’s alleged animosity towards him. The court said that Patino failed to establish that he was singled out by the Nassau County District Attorney’s Office for this criminal prosecution “based upon an impermissible standard such as race, religion or some other arbitrary classification.”
NYPPL

An educator does not have a First Amendment right to determine the method of instruction and the books to be used in his or her classroom

An educator does not have a First Amendment right to determine the method of instruction and the books to be used in his or her classroom
Evans-Marshall v Tipp City Exempted Village School District, CA Sixth Circuit, 09-3775

Shelly Evans-Marshall, a public high school teacher claimed that she had a First (and 14th) Amendment right “to select books and methods of instruction for use in the classroom without interference from public officials” and that the school district had retaliated against her when she attempted to exercise those rights.

The Tipp City Board of Education disagreed, contending that Evans-Marshall’s right to free speech protected by the First Amendment does not extend to her in-class curricular speech.*

The U.S. Circuit Court of Appeals, Sixth Circuit, agreed with the school district's position, holding held that the use the right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made “pursuant to” their official duties, citing Garcetti v. Ceballos, 547 U.S. 410.

The Circuit Court said that this free-speech-retaliation case implicates “two competing intuitions:”

1. Does a teacher have the First Amendment right to choose her own reading assignments, decide how they should be taught and above all be able to teach a unit on censorship without being censored or otherwise retaliated against?

2. Doesn’t a school board have the final say over what is taught, and how, in the public schools for which it is responsible? Who wins depends on which line of legal authority controls.

In this instance, said the court, “a First Amendment claimant must satisfy three tests: the test announced in Connick 'is the matter of public concern;' the Pickering 'balancing' requirement and the Garcetti 'pursuant to” requirement.'” Although Evans-Marshall satisfied the requirements set out in the first two tests, the Circuit Court said that had not met the third, Garcetti, requirement.

* Ohio law provides that “[t]he board of education of each city . . . shall prescribe a curriculum.” O.R.C. § 3313.60(A), thereby giving elected officials — the school board — rather than teachers, a school principal or a school superintendent, responsibility for the curriculum.

The decision is posted on the Internet at:
http://www.ca6.uscourts.gov/opinions.pdf/10a0334p-06.pdf
NYPPL

Contracting out work

Contracting out work
Vestal Employees Association, v PERB and the Vestal Central School District, 94 NY2d 409

In Matter of Webster Cent. School Dist. v Public Empl. Relations Bd., (75 NY2d 619), the Court of Appeals ruled that Education Law Section 1950 (4) (bb) permits school districts to substitute participation in a Board of Cooperative Educational Services (BOCES) summer school program for its own program without undertaking collective bargaining with their teachers' unions.

In this case the Court of Appeals considered another portion of the same statute, Education Law Section 1950 (4) (d), and determined that a school district may to subcontract out its printing services to a BOCES without collective bargaining.

The Vestal Central School District subcontracted its printing services to the Broome-Tioga BOCES.

The single District employee affected consented to the transfer and continued to perform printing duties in the same shop using the same machines.

As a result of this change, the individual performed printing services for two school districts instead of one. In addition, upon this transfer, the employee became a member of a new bargaining unit, the BOCES Support Services Association, which negotiated the terms and conditions of his employment.

PERB dismissed the improper practice charge filed by the Vestal Employees Association (30 PERB 3029) ruling that Education Law Section 1950 (4) (d) applied to contracts for shared noninstructional services. PERB commented that the Commissioner of Education's approval of the agreement "necessarily represents the Commissioner's opinion that the printing services in issue in this case fall within the 'other services' " category of Education Law Section 1950 (4) (d).

The Court of Appeals concluded that “Under this legislative scheme, which grants the Commissioner the discretion to approve aidable shared services, which provides broad protections for public employees other than teachers, and which incorporates tight time considerations, the intent is plain and clear that a school district's decision to subcontract printing services to BOCES is not subject to mandatory collective bargaining.”
NYPPL