Agency’s use of its non-punitive procedure not a prerequisite to disciplinary action

Agency’s use of its non-punitive procedure not a prerequisite to disciplinary action
Matter of Van Osten v Horn, 37 AD3d 317

The Commissioner of the New York City Department of Corrections terminated correction officer Michele Van Osten’s employment after finding her guilty of disciplinary charges that her absences from work were excessive and inadequately explained, and that she was unable to perform the full range of her duties as a corrections officer.

One of the arguments advanced by Van Osten was that the Department could not bring formal disciplinary proceedings against her because it had not earlier provided her with the “informal, non-punitive mechanism adopted by [the] Department to address certain employee misconduct.”

The Appellate Division ruled that fact that such an informal, non-punitive mechanism had been adopted by Department [sometimes referred to as "progresssive discipline"] and could be utilized by the Department at its discretion did not limit its prerogative to initiate formal disciplinary proceedings against an employee pursuant to the Civil Service Law without first using its informal procedure.

As to the penalty imposed, termination, the court said that “Under the circumstances, termination is not a sanction shocking to our sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/discipline-not-barred-by-availability.html


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Public policy favoring collective bargaining of the terms and conditions of employment may be truncated by a competing public policy

Public policy favoring collective bargaining of the terms and conditions of employment may be truncated by a competing public policy
Matter of City of Middletown v City of Middletown Police Benevolent Assn., 2011 NY Slip Op 01400, Appellate Division, Third Department

The City of Middletown Police Benevolent Association ( PBA) and the City were parties to a collective bargaining agreement that had expired. The parties reached an impasse in the course of negotiating a new agreement and the PBA submitted filed a petition with the Public Employment Relations Board ( PERB) seeking the compulsory interest arbitration of several subjects, including a disciplinary procedure proposal, a bill of rights proposal and a proposal concerning procedure under General Municipal Law §207-c.

The City then filed an improper practice charge with PERB claiming, among other things, that the demands submitted by the PBA were not mandatory subjects of negotiation.

PERB ultimately held that the proposals for a bill of rights and disciplinary procedure — both of which involve police disciplinary matters — were prohibited subjects of negotiations, but “created an exception from this general prohibition of collective bargaining for honorably discharged veterans and volunteer firefighters.”

Concluding that collective bargaining over police disciplinary matters was prohibited, without exception, Supreme Court found that PERB's decision was affected by an error of law and granted the City’s petition challenging PERB’s ruling.

The Appellate Division affirmed the Supreme Court’s holding, explaining that “Although strong state public policy favors collective bargaining, there exists a "competing policy … favoring strong disciplinary authority for those in charge of police forces," citing Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563.

The Appellate Division said that "legislation specifically commits police discipline to the discretion of local officials . . . the policy favoring [local] control over the police prevails, and collective bargaining over disciplinary matters is prohibited." As the issue here concerned the relative weight to be given to competing policies, rather than the application of the Taylor Law to particular facts, Appellate Division said that “no deference is accorded to PERB's determination.”

Noting that the Middletown City Charter grants the Board of Police Commissioners the power to "enact, modify and repeal orders, rules and regulations for the . . . discipline of the police department" and "[t]o punish . . . any police officer of the city," these enactments "state the policy favoring management authority over police disciplinary matters in clear terms" and "express a policy so important that the policy favoring collective bargaining should give way."

As to PERB finding that such prohibition against collective bargaining does not apply to honorably discharged veterans and volunteer firefighters, the Appellate Division said that it agreed with Supreme Court “that PERB's determination in this regard was affected by an error of law and, therefore, cannot be upheld.” Specifically, the court decided that PERB's reliance on case law holding that the special protections granted to honorably discharged veterans and volunteer firefighters under Civil Service Law former §22 trump police disciplinary procedures set forth in a local charter was misplaced.*

The bottom line: the Appellate Division conclude that the discipline of Middletown’s police force, including honorably discharged veterans and volunteer firefighters, is not a permissible subject of collective bargaining.

* §22.1 of the Civil Service Law (Chapter 15 of the Laws of 1909, as amended), sets out procedures to be followed with respect to the “Removal of veterans and volunteer firemen” while §22.2 of such law sets out procedures with respect to the “Removal generally” of “officers and employees holding a position in the competitive class of the civil service of the state or any civil division or city thereof.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01400.htm
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A court's review of a college’s or university’s disciplinary action against a student limited to whether it complied with its own rules in the process

A court's review of a college’s or university’s disciplinary action against a student limited to whether it complied with its own rules in the process
Matter of Hyman v Cornell Univ., 2011 NY Slip Op 01548, Appellate Division, Third Department

A Cornell faculty member alleged that a graduate student exchanged a series of e-mails. The faculty member told the student she should not contact him after the student suggested that they have a sexual affair.

When the student continued to send the faculty member e-mails, he told her that he that he would take formal action against petitioner if she persisted in communicating with him. Although the student agreed to discontinue communication, she subsequently e-mailed Cornell’s president, copying the faculty member, alleging that her "institutional rights" had been repeatedly violated by Department faculty.

The faculty member instituted proceedings against the graduate student and ultimately filed a complaint accusing her of harassment in violation of Cornell’s Code of Conduct.*

The graduate student than filed a complaint against the faculty member, accusing him of sexual harassment and retaliation. Ultimately the Cornell’s Hearing Board sent the student a written reprimand and issued a “no-contact order.”

The student sued, but Supreme Court dismissed her Article 78 petition. Subsequently the Appellate Division dismissed the student’s appeal of the Supreme Court’s ruling, stating that:

It is well settled that in reviewing a college’s or university's disciplinary determinations, "court[s] must determine 'whether the university substantially adhered to its own published rules and guidelines for disciplinary proceedings," citing Matter of Warner v Elmira Coll., 59 AD3d 909.

The court explained that only in the event the college or university “has not substantially complied with its own guidelines or its determination is not rationally based upon the evidence, the determination will be annulled as arbitrary and capricious.”

* Cornell’s Code of Conduct makes it a violation "[t]o intentionally harass another person by . . . acting toward that person in a manner [that] is . . . severely annoying . . . and beyond the scope of free speech."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01548.htm
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Freedom of information and speech

Freedom of information and speech
Informal Opinions of the Attorney General: 2000-2

The basic principle underlying New York State’s Freedom of Information Law [FOIL] is that all public documents are subject to disclosure upon request unless such disclosure is specifically prohibited by law.

For example, the State’s Public Health Law, Mental Hygiene Law and Education Law prohibit the disclosure of certain documents or information to the public without specific authorization by a court.

FOIL, however, also lists a number of exemptions that authorizes, but does not require, the custodian of the document to withhold particular information or documents if, as a matter of discretion, it elects to do so. Similarly, the State’s Open Meetings Law requires that the public be allowed to attend all meetings held by a public entity, although the public may be excluded from executive sessions held by the entity.

Executive sessions may be held for limited purposes, however. These include sessions in which the body will discuss items that would imperil public safety if disclosed; result in the identification of law enforcement personnel or police informants; concern matters involving criminal investigations; discussions concerning pending legislation or Taylor Law negotiations; personnel matters involving a particular individual; certain economic issues and matters concerning examinations and tests.

Although discussions of matters considered in executive session may be withheld even if they are recorded, both FOIL and the Open Meetings Law require that any formal vote taken during an executive session be made a public record subject to FOIL together with a record of how each member of the body voted.

May a local legislative body adopt a resolution prohibiting a member of that body from disclosing matters discussed in an executive session held by that body? This was the question presented to the Attorney General by Gregory J. Amoroso, the City of Rome’s corporation counsel.

In response, the Attorney General noted the parallels between the exceptions allowed under FOIL and the purposes for which a public body may go into an executive session from which the public is barred. His conclusion:

A governing body of a municipality may withhold any records of discussions properly taking place during an executive session and, further, it may prohibit its members from revealing the content of such discussions to the public.

However, cautioned the Attorney General, while the decision to go into executive session is a matter of properly exercising discretion and nothing in either FOIL or the Open Meetings Law prohibits the barring of the disclosure the nature of the discussions conducted in executive session by a participant, all such prohibitions are subject to federal and state freedom of speech requirements.

The clear implication here: neither FOIL nor the Open Meetings Law will serve as a shield in the event a court determines that a limitation placed on revealing matters considered in executive session violates the individual’s constitutional right to free speech. Courts have typically found that limitations placed on a public officer or employee with respect to his or her disclosing matters of public interest violates the individual’s right of free speech.

In contrast, prohibiting an individual from publicly discussing subjects or governmental decisions or actions involving matters of a personal interest rather than a public interest does not violate the individual’s constitutionally protected right of free speech. As the U.S. Supreme Court indicated in Connick v Myers, 461 US 138, constitutional free speech rights are not implicated when only matters of a personal interest to the individual, in contrast to matters of public concern, are involved.
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Vacating or modifying an arbitrator’s award

Vacating or modifying an arbitrator’s award
Matter of Westchester County Correction Officers Benevolent Assn., Inc. v County of Westchester, 2011 NY Slip Op 01482, Appellate Division, Second Department

Article 75 of the Civil Practice Rules provides that an arbitration award may be vacated by the courts upon a finding of:

a. Corruption, fraud or misconduct in obtaining the award; or

b. Partiality of the arbitrator, unless the award was by "confession;" or

c. The arbitrator exceed his or her authority or so imperfectly executed his or her power that no award as to the subject matter submitted was made; or

d. There was a failure to follow the procedures set out in Article 75.

An arbitrator's award may be modified only if there was a miscalculation of numbers or a mistake in the description of a person or thing; an award was made regarding some matter not submitted to the arbitrator for arbitration; or the award was "imperfect as to form" but not involving the merits of the controversy.

The Westchester case involved a proceeding pursuant to CPLR article 75 to vacate an arbitration award. The Appellate Division set out the following guidelines with respect to judicial review of an arbitration award:

1. Judicial review of arbitration awards is extremely limited.

2. An arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached.

3. An arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator.

4. Courts should not assume the role of overseers to mold the award to conform to their sense of justice.

In this instance the court held that party seeking to vacate the arbitrator’s award “failed to meet its burden of proving by clear and convincing evidence that the arbitrator committed misconduct, and that such misconduct prejudiced its rights or the integrity of the arbitration process.”

Further, said the Appellate Division, an arbitrator exceeds his or her power within the meaning of CPLR §7511(b)(1)(iii) "only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01482.htm
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