New York Public Personnel Law readers

New York Public Personnel Law readers
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Canada…………….……….312
Ukraine………...…………170
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NYPPL

Hearsay evidence may be the basis for an administrative disciplinary determination

Hearsay evidence may be the basis for an administrative disciplinary determination
Matter of Hughes v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 07932, Decided on November 3, 2010, Appellate Division, Second Department

Thomas Hughes, an Office of Court Administration [OCA] court officer, was served with disciplinary charges alleging, among other offenses, failing to keep his uniform in proper condition, failing to keep his weapon properly loaded, and keeping an impermissible metal-jacketed round in his weapon.

The disciplinary hearing officer found that Hughes was guilty of “engaging in acts of misconduct and incompetency prejudicial to the good order and efficiency of the New York State Unified Court System and adversely reflecting on his fitness to continue as a court office.” OCA accepted the hearing officer’s recommendation that Hughes be dismissed from his position. Hughes filed a petition pursuant to CPLR Article 78 seeking a court order vacating OCA’s decision to terminate him.

The Appellate Division dismissed Hughes petition noting that “appellate review of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.”

In this instance, said the court, the hearing officer’s findings were supported by substantial evidence.*

Addressing another issue concerning the evidence presented in the course of the disciplinary hearing, the Appellate Division commented that “Hearsay evidence may be the basis for an administrative determination,” citing Gray v Adduci, 73 NY2d 741.

As to the penalty imposed, dismissal, the court said that “termination of employment was not so disproportionate to the misconduct as to shock the conscience.”

* Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07932.htm
NYPPL

Supervisor’s performing employee’s duties while employee suspended pending a criminal investigation leads to additional disciplinary charges

Supervisor’s performing employee’s duties while employee suspended pending a criminal investigation leads to additional disciplinary charges
Matter of Covert v Schuyler County, 2010 NY Slip Op 07861, Decided on November 4, 2010, Appellate Division, Third Department

Beth E. Covert was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that she had asked a neighbor to lie to law enforcement officials conducting a criminal investigation of Covert.

Covert was suspended from her duties as a probation officer as a result of the criminal investigation and her supervisor assumed responsibility for her pending probation case files. In the course of the supervisors handling Covert’s cases, the supervisor found a number of irregularities and deficiencies relating to Covert’s record keeping and supervision of probationers

These finding resulted in additional §75 charges being filed against Covert. As a result of these additional charges, Covet was also found guilty of incompetence.

Based on the findings of misconduct and incompetence, together with her prior unsatisfactory service and her failure to take responsibility for her acts and omissions, the Schuyler County Administrator terminated Covert’s employment.

When Covert sued seeking to vacate the Administrator’s determination the Appellate Division dismissed her petition stating that it would not disturb the Administrator's determination made following a hearing pursuant to Civil Service Law § 75 as long as it supported by substantial evidence.

As to the charges alleging Covert had asked a neighbor to lie on her behalf, Covert’s supervisor testified that Covert had admitted to him that she had asked the neighbor to lie for her and then declared that "it's not like asking someone to lie for you is against the law." Covert, in contrast, testified that she had neither made such an admission nor asked anyone to lie.

This conflict in testimony, said the Appellate Division, was resolved against Covert by the Administrator and it will not substitute the court’s own credibility determinations for those of the Administrator,

As for the determination of incompetence, the evidence established that despite Covert's position as the designee responsible for transfers, she was unaware of the travel restrictions and written policies governing interstate transfers. Further, her incompetence with respect to the handling of a convicted sex offender on probation was also documented by evidence reflecting her continued failure to require the probationer to complete sex offender therapy.

Further, said the Appellate Division, charges of incompetence relating to Covert’s failure to properly use the computerized systems and failures in record keeping are also supported by substantial evidence.

Finally, the court rejected Covert’s argument that the statute of limitations barred certain of the charges, holding that “given the continuous nature of the incompetence,” such an argument is “unavailing.”

In the light of the findings in the disciplinary action and the fact that a prior letter of reprimand had been placed in Covert’s personnel file,* the Appellate Division said that the penalty of termination “is not so disproportionate to the offense as to be shocking to one's sense of fairness.”

* In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if (a) the individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and (b) the employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07861.htm
NYPPLPL

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