Court rejects attorney’s claim that public funds were wasted because he was qualified and would have done the legal work for substantially less money

Court rejects attorney’s claim that public funds were wasted because he was qualified and would have done the legal work for substantially less money
Matter of Diederich v Lawrence, 2010 NY Slip Op 07850, Decided on November 4, 2010, Appellate Division, Third Department

Attorney Michael Diederich Jr., a resident of Rockland County, sued the Rockland County Solid Waste Management Authority contending that Authority had “wasted taxpayer money” by paying a law firm, Holland & Knight, LLP, a legal fee of $104,000 for preparing an amicus curiae brief submitted to the United States Supreme Court.*

Diederich argued that he, as well as other attorneys, had more relevant expertise and would have completed the legal work for substantially less money.

The Authority and Holland & Knight moved for summary judgment challenging both Diederich's standing to bring the action and his substantive allegations. Supreme Court dismissed Diederich's petition, finding that he had not established standing under the common law or State Finance Law §123-b.**

The Appellate Division sustained Supreme Court’s ruling, noting that “Common-law standing requires a showing of ‘an injury in fact, distinct from that of the general public,’ that falls within the zone of interests promoted or protected by the pertinent regulation or statute.” Diederich, said the court, failed to allege an injury distinct from other taxpayers and, thus, has not met his burden as to common-law standing.

As to Diederich’s argument that the Authority acted ultra vires*** when it spent funds for an amicus brief, the Appellate Division observed that “Common-law taxpayer standing implicates "important governmental actions" that would otherwise evade judicial review, and the doctrine ‘should not be applied . . . to permit challenges to the determinations of local governmental officials having no appreciable public significance beyond the immediately affected parties, by persons having only the remotest legitimate interest in the matter’ [and] this criteria is not satisfied by [Diederich’s] personal interest in providing allegedly less expensive legal services and the apparent slight tax increase reportedly caused by the Authority's decision to use Holland & Knight, a law firm with which it had an ongoing relationship for several years.”

Addressing the merits of Diederich’s ultra vires argument, the court said that “retaining a law firm to prepare an amicus brief for a case pending before the United States Supreme Court that includes an issue of significance to the Authority falls within the powers conferred to the Authority by the Legislature,” citing Public Authorities Law §2053-c [4]; §2053-e [12]..

* The brief amicus curiae [friend of the court] had been prepared by Holland & Knight in for submission to the Supreme Court in United Haulers Assn. v Oneida-Herkimer Solid Waste Mgt. Auth, 550 US 330.

** The Appellate Division noted that Diederich had not argued that he has standing under State Finance Law §123-b on appeal and deemed that he had abandoned that claim.

*** Ultra vires - Latin for "beyond its powers," referring to an organization or its officers that exceeds the powers granted it by law.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07850.htm
NYPPL

No “anti-arbitrating” presumption to resolving grievances alleging a violation of a collective bargaining agreement

No “anti-arbitrating” presumption to resolving grievances alleging a violation of a collective bargaining agreement
Watertown CSD v Watertown Education Association
Indian River CSD v Indian River Education Association
Court of Appeals, Nos. 50 & 51, joint decision issued 93 NY2d 132

In numerous decisions, New York State courts have frowned on the use of arbitration to settle disputes between public employers and unions unless the collective bargaining agreement specifically states that the subject matter involved is subject to the contract grievance procedure set out in the agreement. In the combined decision issued for the Watertown and Indian River cases, the Court of Appeals -- New York State’s highest court -- articulated a much more liberal view regarding the use of arbitration to resolve public sector collective bargaining issues. It ruled that there is no anti-arbitration presumption in the Taylor Law or as a matter of public policy, and signaled lower courts to be less strict when deciding if arbitration is required by contracts.

Both cases involved claims regarding the arbitrability of an increase in employees’ health insurance co-payments. Although the relevant collective bargaining agreements were silent regarding whether resolving co-payments complaints was subject to contract grievance procedures, the Court of Appeals found the issue was arbitrable.

Key was the fact that the Taylor Law contracts involved each contained a broad arbitration clause that provided that “any alleged violation of this Agreement, or any dispute with respect to its meaning or application” was arbitrable.

Given the broad arbitration clause in the Watertown and Indian River agreements, and the presence of some language dealing with health insurance benefits, the Court of Appeals ruled that “the reduction of benefits by increasing the employees’ co-payments was an arbitrable issue.”

The dispute arose after Watertown and Indian River, together with a number of other school districts, formed a Municipal Cooperation Agreement to provide health insurance benefits for employees of participating districts. When the Plan raised the employees’ co-payment cap in response to “financial conditions,” the Watertown and Indian River Teacher Associations each filed a grievance alleging that the change in employee contributions constituted an impermissible, unilateral reduction in employee benefits and a violation of their respective collective bargaining agreements.

The grievances were denied. When the Associations sought arbitration, both districts asked for, and obtained, stays on the grounds that the parties had not agreed to arbitrate the dispute at issue.

But the Court of Appeals ruled that it is not necessary for a given issue to be specifically enumerated in the contract grievance portion of a collective bargaining agreement for it to be arbitrable. It ordered the parties in both cases to “proceed to arbitration.”

The court noted that there were two basic arbitration concepts contained in the Taylor Law:

1. Compulsory arbitration: Also referred to as “interest arbitration,” such arbitration is authorized by Section 209 of the Civil Service Law. It is triggered by an impasse in the course of negotiating terms and conditions of employment for police personnel. The decision of the arbitration panel “is final and binding” on the parties. Section 209.4 is a legislatively mandated alternative to striking by police officers or firefighters. This provision will expire June 30, 1999 unless extended by the Legislature.

2. Permissive arbitration refers to the ability of the parties to a collective bargaining agreement to voluntarily agree to arbitrate any subject matter as long as it does not concern a matter of public policy. Court held matters of public policy that are off-limits to arbitration include: (1) tenure decisions, (2) decisions to terminate an employee for violation of the federal Hatch Act, (3) seniority disputes involving academic standards, and (4) accessibility to personnel files. [See the Court of Appeal’s decision in Matter of United Liverpool Faculty Association, 42 NY2d 509]

In the Watertown and Indian River cases, the Court of Appeals clarified its stance on arbitrability of disputes. It said that Liverpool did not expressly create a “presumption” against public sector arbitration. The high court said: “[T]o the extent ... that one may be implied or fairly so characterized, an anti-arbitrational presumption is no longer justified either in law, or in the public sector labor environment.”

To determine if a given subject is arbitrable under permissive arbitration, the court said it would stay with a two-step analysis set out in Liverpool because “it has been workable for over two decades.” The Liverpool tests are:

1. Is the arbitration concerning an area subject to the Taylor Law (i.e., not a matter involving public policy)?

and, if so,

2. Did the parties agree, by the terms of their particular arbitration clause, to refer their differences in this specific area to arbitration?

In regard to the second test, the Court of Appeals sent a message to judges throughout the state that they should not be too strict in evaluating whether the parties had agreed to arbitrate specific types of disputes. “A court confronted with a contest of this kind should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the collective bargaining agreement,” the Court of Appeals said.

It set out the following guidelines for lower courts to follow:

1. If a court finds that there is no reasonable relationship between the subject matter of the dispute and the general subject matter of the agreement, the issue, as a matter of law, is not arbitrable.

2. If a reasonable relationship is present, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the collective bargaining agreement, and whether the subject matter of the dispute fits within them.

The court implied that if an employer seeks a stay of a demand for arbitration, the judicial standard would be “strict scrutiny.” In other words, the employer would have to show compelling governmental interest in avoiding the arbitration. The decision also states that “it is also clear that the merits of the grievance are not the courts’ concern.”

The court noted that “the decisional law reflects the reality of greatly increased public sector arbitration, and its acceptance, compatible with the government’s public policy concerns.” As an illustration, the court listed the following types of disputes as having been ruled subject to resolution by an arbitrator.

1. Union’s use of public office space.

2. Rehiring on basis of seniority.

3. Employee evaluations.

4. Grievance filed by a nonteaching employee under teachers’ collective bargaining agreement.

5. Violation of disciplinary provisions claimed by a probationer.

6. Denial of a sabbatical leave.

7. Failure to submit a change in educational policy to advisory professional council.

8. Compensating a peace officer for an off-duty arrest.

9. Violation of a “no-reprisal clause in agreement.”
NYPPL

Police officer’s association with individuals involved in alleged criminal activity results in dismissal from the position

Police officer’s association with individuals involved in alleged criminal activity results in dismissal from the position
Richardson v Safir, 258 AD2d 328

The Appellate Division upheld the dismissal of New York City police officer Edward Richardson based on a determination that Richardson “knowingly associated with a person he reasonably believed was engaged in criminal activity.”

Richardson was also found guilty of making “false and misleading statements in an official Department investigation.”

The court said that the determination leading to Richardson’s termination was supported by substantial evidence, “including, in particular, [Richardson’s] own testimony in the official investigation.”
NYPPL

Assurance of reemployment of an educator negates his or her eligibility for unemployment insurance benefits between school years

Assurance of reemployment of an educator negates his or her eligibility for unemployment insurance benefits between school years
Huff v Commissioner of Labor, 247 AD2d 734, 257 AD2d 832

In case involving a claim for unemployment insurance benefits, Buffalo City School District teacher’s aide Dennis Huff, Sr. filed an application for unemployment insurance benefits in June 1997 at the end of the 1996-1997 academic year.

Applying the provisions of Section 590.11 of the Labor Law, the Unemployment Insurance Appeals Board ruled that Huff was ineligible for such benefits for the summer of 1997 because the Buffalo City School District had given him a reasonable assurance that he would be rehired on the same terms and conditions of employment for the 1997-1998 school year effective September 1997.

Huff appealed, contending that Section 590.11 did not apply in his situation “because he normally provided services for an educational institution that accepts students year-round.” The Appellate Division, noting that Huff had made the same argument “in prior unsuccessful claims,” observed that the applicable Taylor Law contract covers Huff’s employment only during the academic year -- September through the June next following. The employment of aides for summer school, said the court, “is dictated by entirely different criteria.”
NYPPL

Discontinuation of employer’s cafeteria service a mandatory subject for collective bargaining

Discontinuation of employer’s cafeteria service a mandatory subject for collective bargaining
CSEA Local 1000 & Nassau County, 32 PERB 3005

For at least nine years the Nassau County Medical Center (NCMC) provided food service in its cafeteria between the hours of 2:00 a.m. and 4:00 a.m. When the County unilaterally discontinued providing such service and refused to negotiate its action, CSEA filed an improper practice charge with PERB.

A PERB administrative law judge ruled that Nassau County violated the Taylor Law by acting unilaterally with respect to mandatory subjects of negotiations “without a meritorious defense.” PERB sustained the ruling, pointing out that the cafeteria was open for at least nine years to serve the 200 to 300 employees who worked the midnight shift at NCMC. This, said PERB, affected the employees’ term and conditions of employment since its use by employees “is both an economic fringe benefit, as it avoids any need for employees to eat and drink off premises at higher cost, and it is a matter directly affecting their health, personal comfort and convenience.” PERB told Nassau to reinstate the food service it provided before it closed NCMC’s cafeteria and “to make unit employees whole” to the extent that it can be shown that the closing resulted in their incurring additional expense for food and beverages.

A collateral issue involved the County’s directing the employees to discontinue the use of their personal appliances such as electronic ovens and “heat generating electrical appliances” at their workstations. PERB said that the County’s interest in protecting the patient’s safety overcame the employees’ interest in their having such convenience items available to them at their workstation and dismissed this branch of CSEA’s improper practice charge.
NYPPL