Attorneys, Arbitrators, Consultants, Expert Witnesses

Attorneys, Arbitrators, Consultants, Expert Witnesses
.
NYPPL readers often ask for the name of a professional to handle a personnel, retirement, civil rights or other employment related matter. If you or your firm is interested in being listed in NYPPL’s directory of professionals, send an e-mail to publications@nycap.rr.com with the word “Directory” as the subject and the details will be e-mailed back to you.
.

The law of defamation in New York

The law of defamation in New York
Source: New York State Bar Journal

Mitchell H. Rubinstein, Adjunct Professor at the New York Law School and St. John's University - School of Law and a frequent contributor to NYPPL, has written an article entitled A Peek at New York Defamation Law that has been published by the New York State Bar Journal [82 N.Y.S. Bar J. 58 (Nov./Dec. 2010)],

This article is a primer on the law of defamation in New York. The author discusses the definition of defamation, litigation issues involving pre-complaint disclosure, defenses such as truth and opinion as well as the different types of privileges that may be applicable.

You can download the article from Professor Rubinstein's SSRN page [Publication #18] at no charge, here.

Lack of a transcript of a disciplinary arbitration not fatal to confirming the arbitrator’s award

Lack of a transcript of a disciplinary arbitration not fatal to confirming the arbitrator’s award
Matter of Jordan v Human Resources Admin. City of New York, 2010 NY Slip Op 08575, Decided on November 16, 2010, Appellate Division, Second Department

The Appellate Division ruled that Jerome E. Jordan failed to establish any grounds for vacating the arbitration award, including his argument that “under the circumstances here, the fact that the arbitration hearing was not transcribed did not provide a basis for vacating the arbitration award.”

N.B. In some instances a contract disciplinary procedure set out in a collective bargaining agreement provides that party may elect to have a transcript of the disciplinary arbitration hearing taken. Typically the cost of making a transcript of the hearing is at the requesting party’s own expense and frequently the CBA requires that the party requesting the transcript provide a copy to the arbitrator and the other party.

In contrast to a disciplinary arbitration, where the arbitrator makes the final determination, Civil Service Law §75 not only requires that a transcript of the hearing be made, it also requires that a transcript of the hearing be provided free of charge to the employee.

Further, a hearing officer or panel submits a report and a recommendation as to the penalty to be imposed to the appointing authority and it is responsibility of the appointing authority to conduct an independent review of the facts before rendering its decision.

In Ligreci v Honors, 162 AD2d 1010, the Appellate Division found that the appointing authority erred by making a determination in a disciplinary action before receiving the transcript of the hearing. Further, the courts have held that the failure to include transcript of the disciplinary hearing in a judicial challenge to the disciplinary determination or penalty imposed bars any “meaningful appellate review.”

Similarly, in a disciplinary action pursuant to, and consistent with, §3020-a of the Education Law, 8 NYCRR 82-1.11(c) provides that the Commissioner of Education is to arrange for “the preparation of a hearing transcript by a competent stenographer and shall compensate the stenographer for the cost of preparing the transcript and copies thereof for the hearing officer, each panel member, the department, the employee and the board.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08575.htm
NYPPL

Disciplinary procedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules

Disciplinary procedures set out in a collective bargaining agreement trumped the Civil Service Commission’s probationary termination rules
Gordon v Town of Queensbury, App. Div., 256 AD2d 784

Michael Gordon was terminated from his position as a motor equipment operator by the Town of Queensbury before he completed his probationary period. He challenged the town’s action, contending that the town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission and thus his termination was made “in bad faith.”

Rule XIV.5 of the Warren County Civil Service Commission requires that “a probationer whose services are to be terminated for unsatisfactory performance receive written notice of such termination at least one week prior thereto.”

Here, however, the Appellate Division decided that “the disciplinary provisions” set out in a collective bargaining agreement negotiated pursuant to the Taylor Law trumped the Commission’s rules. In its analysis of the case, the court pointed out that:

1. A county civil service commission has the authority to promulgate rules for the “conditions and extent of probationary service” which [when filed] have the force and effect of law.

2. “A violation of such rules may be sufficient to trigger a trial on the issue of bad faith.”

3. The former employee “bears the burden of presenting competent proof that his or her dismissal was made in bad faith.”

But, the court said, “it is equally true ... that the disciplinary procedures set forth in a collective bargaining agreement may be substituted for statutory procedures, in which case an employee is ‘entitled to no more procedural protections than those expressly afforded him [or her] under the collective bargaining agreement.”

The Appellate Division said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining agent, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.

Also noted in the opinion was the fact that “it is well settled that a probationary employee may be discharged without a hearing and without a statement of reasons absent proof that such discharge was for a constitutionally impermissible reason or in violation of statutory, decisional law, or in bad faith.

Since Gordon “failed to tender proof sufficient to raise a triable issue of fact in this regard,” the court decided that no hearing was required concerning the Town’s motivation in discharging him from the position and dismissed the appeal.
NYPPL

Police officer's termination for stealing money seized at a police raid ruled an appropriate penalty under the circumstances

Police officer's termination for stealing money seized at a police raid ruled an appropriate penalty under the circumstances
Renna v Safir, App. Div., 256 AD2d 219

In Renna v Safir the Appellate Division again applied the Pell standard – did the penalty imposed shock the conscience of the court.

Mary Renna was dismissed from her position as a New York City police officer after being found guilty of stealing money seized at an illegal gambling location during a police raid.

The court said that Renna’s guilt was supported by substantial evidence, including:

1. The images on a “videotape surveillance of the location,"

2. Renna's failure to report the allegations of corruption made against her in integrity tests conducted by Internal Affairs, and

3. Renna's admittedly false statements concerning the integrity test given in the departmental interview.”
NYPPL