Disciplinary penalty set out in a consent award agreed to in the course of disciplinary arbitration not within the power of a subsequent arbitrator to modify

Disciplinary penalty set out in a consent award agreed to in the course of disciplinary arbitration not within the power of a subsequent arbitrator to modify
In the Matter of Saderia Burke v Nassau Health Care Corporation, 2011 NY Slip Op 02887, Appellate Division, Second Department

This decision addressed two proceedings involving Saderia Burke’s arbitration award. Burke, a member of the Civil Service Employees Association, Inc.

In the course of a disciplinary proceeding Burke and the Nassau Health Care Corporation entered into a "Consent Award" that was "so-ordered" by the arbitrator. The Award provided that Burke would be terminated if she committed certain disciplinary infractions within an agreed period.

Subsequently Health Care served a “notice of termination” on Burke after she allegedly committed “certain infractions.” CSEA filed another grievance and demand for arbitration.

After this second hearing, the arbitrator found that Burke, indeed, had committed infractions that would result in termination in accordance with the Consent Award. The arbitrator, however, issued an award imposing a penalty of suspension rather than termination.

Health Care filed an Article 75 petition seeking to vacate the award while CSEA filed an Article 75 petition seeking to confirm the award.

Supreme Court denied Health Care’s petition, granting so much of the arbitration award as imposed a penalty of suspension without pay on Burke.

The Appellate Division reversed the Supreme Court’s decision, and vacated the penalty of suspension without pay awarded by the arbitrator, explaining that courts may vacate an arbitration award if the award "violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Matter of Falzone, 15 NY3d 530.

An arbitrator, said the court, may properly modify a prior arbitration award only to:

1. Correct a miscalculation or mistaken description in the prior award:

2. To correct so much of the prior award as was rendered on a matter not submitted to the arbitrator and which can be corrected without affecting the merits of the decision; or

3. To correct a prior award that is "imperfect in a matter of form."

In this instance the Appellate Division found that the arbitrator had exceeded his authority by determining an issue “not submitted to him.” Further, he ruled on an issue had been resolved via a “consent award” in a prior arbitration involving Burke, the penalty to be imposed for any other “certain” disciplinary infraction.

In view of this, ruled the Appellate Division, Supreme Court should have modified so much of the arbitrator's award as imposed a penalty of suspension without pay and reinstated the penalty of termination.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02887.htm

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Termination of employment recommended as the penalty for failure to follow proper procedure in safeguarding the property of an agency client

Termination of employment recommended as the penalty for failure to follow proper procedure in safeguarding the property of an agency client

NYC Human Resources v Townsend, OATH Index #1325/11

A NYC Human Resources Administration client was arrested and Marvin Townsend, a supervising special officer, was assigned to process the arrest.

The client had a jacket with a Portable Sony Playstation (PSP) and wallet, in the pocket.

Townsend told the client he would not voucher the property and that she could get it from his office on the next day.

When the client retrieved the jacket, the PSP and wallet were missing. The PSP was subsequently returned to the client but the wallet was not.

ALJ Alessandra Zorgniotti found that the sergeant failed to follow vouchering procedures and attempted to cover up his actions and deceive the client. The Administrative Law Judge recommended that Townsend be terminated from his position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1325.pdf
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Temporary appointees not entitled to a pretermination due process hearing

Temporary appointees not entitled to a pretermination due process hearing

Sanni v NYS Office of Mental Health, USDC, EDNY, 2/15/2000

Frequently a public employee holding a temporary appointment will challenge his or her termination from the position claiming that he or she is entitled to a pretermination due process hearing. This was one of the issues considered by Federal District Court Judge Gleeson in the course of his deciding the Sanni case.

Thomas Sanni, then employed in a grade 27 project director position at Kings Park Psychiatric Center, was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. Simultaneously, he was reinstated to his permanent grade 18 position and transferred to Queens Children Psychiatric Center.

Ultimately, arbitrator Howard A. Rubenstein found Sanni guilty of 11 of the 14 charges filed against him. Among the charges for which Sanni was found guilty were the following:

1. Improperly participating in and supporting the decision to employ the minister of [Sanni’s] church to exorcise a patient possessed by spirits;

2. Transporting a patient in his car when he did not hold a valid driver’s license;

3. Claiming overtime for work he did not perform;

4. Having his personal automobile repaired by Kingsboro and billing the facility for personal items he shipped overseas via international Federal Express; and

5. Lying under oath in the course of being interviewed concerning the charges.

The department accepted Rubenstein’s findings and his recommendation that Sanni be terminated. Sanni sued, contending that the Office of Mental Health’s disciplinary action against him (1) violated his civil rights, (2) constituted retaliation for his filing a Title VII complaint against it and (3) it terminated him from the grade 27 position in violation of Section 75.

As to Sanni’s due process claims, Judge Gleeson pointed out that a public employee who has a property interest or right in his or her position is entitled to a pretermination hearing before he or she may be removed from the position. By logical extension, said the court, an employee covered by Section 75 has a property interest in his or her civil service grade since one of the penalties that may be imposed under Section 75 is demotion in grade and title.

The problem with Sanni’s argument, however, was that temporary employees in New York have no property interest in their jobs. Accordingly, Judge Gleeson, citing the Appellate Division’s ruling in Jones v Westchester County, 644 NY2d 640, granted the State’s motion to summarily dismiss this branch of Sanni’s complaint.

Sanni’s civil rights and retaliation claims based on his demotion and transfer to another department facility survived, however.

This suggests that in such situations the State may attempt to have the case dismissed on the grounds that it immune from suit in federal court for alleged violations of Title VII in view of the rulings by the Supreme Court of the United States in Kimel v Board of Regents, 528 U.S. 62 and Alden v Maine, 527 U.S. 706, cases involving employees suing their state employer in federal court for alleged violations of, respectively, the Age Discrimination in Employment Act and the Fair Labor Standards Act.

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Civil Service Commission's refusal to extend an eligible list challenged

Civil Service Commission's refusal to extend an eligible list challenged

Matter of Kapetanos v City of New York,  37 AD3d 279

Christopher Kapetanos challenged the New York City Civil Service Commission’s decision not to extend the duration of a 2000 eligible list for the civil service position of Associate Fraud Investigator. The decision notes that Kapetanos did not plead, even in conclusory fashion, that the restriction triggering the Commission’s ability to exercise its Civil Service Law Section 56.1 discretion to extend the eligible list was attributable to a financial emergency.

Section 56.1 addresses extending eligible lists in situations involving restriction against the filling of vacancies. It provides that:

The duration of an eligible list shall be fixed at not less than one nor more than four years; provided that, except for lists promulgated for police officer positions in jurisdictions other than the city of New York, in the event that a restriction against the filling of vacancies exists in any jurisdiction, the state civil service department or municipal commission having jurisdiction shall, in the discretion of the department or commission, extend the duration of any eligible list for a period equal to the length of such restriction against the filling of vacancies.

Restriction against the filling of vacancies shall mean any policy, whether by executive order or otherwise, which, because of a financial emergency, prevents or limits the filling of vacancies in a title for which a list has been promulgated. An eligible list that has been in existence for one year or more shall terminate upon the establishment of an appropriate new list, unless otherwise prescribed by the state civil service department or municipal commission having jurisdiction.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/extension-of-eligible-list.html

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Work related investigations

Work related investigations

Cerrone v Cahill, USDC, NDNY, 84 F. Supp. 2d 330

An investigation is being conducted by the appointing authority concerning alleged misconduct by an employee.

1. Do the same rules that apply when the appointing authority conducts an investigation involving alleged work-related misconduct control when the appointing authority is investigating alleged off-duty misconduct?

2. Is there any difference between an investigation by an appointing authority for the purpose of filing administrative disciplinary charges against an employee and its investigation directed towards bringing criminal charges against the individual?

As the Cerrone case demonstrates, if the focus of the investigation is criminal rather than administrative, different rules and safeguards control.

State Police Sergeant Thomas Cerrone filed a law suit in federal district court contending that his Fourth Amendment rights were violated in the course of his being investigated concerning “some sort of cover-up” related to his role in an investigation of a hit and run accident that occurred on April 3, 1993.

According to the decision, Cerrone reviewed and signed an accident report prepared by Trooper Robert Gregory that was alleged to be facially insufficient and contained false information. Sometime later, a letter signed by Ed Scott stating that Rory Knapp, the brother of State Trooper Timothy Knapp, left the scene of an accident on April 3, 1993 was received by the Division of State Police. Ed Scott denied writing the letter and the letter writer was never positively identified.

On January 19, 1995, Cerrone was stopped by investigators, placed in an unmarked police car and taken to a hotel for questioning about the hit and run incident.

Cerrone was given a Miranda warning and advised that he was the target of a criminal investigation. The investigators did not have a warrant for their action. After being questioned for six hours, Cerrone was permitted to leave when he agreed to take a polygraph test.

One of the recognized exceptions to the prohibition against warrant less searches and seizures is work-related investigations. Cerrone argued that in this case, the investigation was criminal rather than work related and thus he was entitled to the protections of the Fourth Amendment against unreasonable searches and seizures.

Noting that the procedures governing administrative investigations set out in the applicable Taylor Law agreement were not implemented in the course of Cerrone’s interrogation, Judge Thomas J. McAvoy agreed that the basic purpose of the investigation was criminal rather than administrative in nature.

The court said that the distinction between searches and seizures for the purpose of criminal prosecution and those undertaken for work related or administrative purposes is critical and many courts upholding a standard lower than probable cause [in work related investigations] have recognized that the lower standard is not appropriate in the criminal arena.

Thus, observed Judge McAvoy, if Cerrone was seized or arrested without probable cause, his Fourth Amendment rights were violated. The court also noted that the available evidence prior to Cerrone’s being questioned revealed little linking him, as opposed to other officers, to the alleged cover-up.

The decision sets out the following basic principles to be followed in investigation of employee misconduct:

1. Where a search or seizure is conducted by a government employer to further a criminal investigation, the traditional requirement of probable cause is necessary and the individual is protected by the Fourth Amendment.

2. Government employers cannot avoid the traditional Fourth Amendment safeguards applicable in the context of criminal investigations simply by labeling a criminal search work-related.

Law enforcement agencies may have greater difficulty here than other government employers. Typically, a non-law enforcement agency’s investigation of alleged misconduct looks towards filing administrative disciplinary charges against an individual. As the court ruled in Biehunik v Felicetta, 441 F.2d 228, Fourth Amendment rights do not apply in investigations of work-related misconduct.

In contrast, the very nature of investigations by law enforcement agencies of its personnel often tends to blur the line between administrative investigation for the purpose of initiating administrative disciplinary action and an investigation of the same or a related incident for the purpose of bring criminal charges against the individual. Accordingly, the distinctions identified by Judge McAvoy in the Cerrone case should be kept in mind when investigations into alleged employee misconduct are initiated by a law enforcement agency.

However, in Dombrowski v Safir, decided by the Appellate Division, First Department, 269 AD2d 161, the court upheld the termination of New York City police officer Kenneth J. Dombrowski as a result of his refusal to answer questions directly and narrowly relating to his official duties.

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.

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