Chronic absenteeism policy - multiple penalties challenged

Chronic absenteeism policy - multiple penalties challenged
Seabrook v New York, NYS Sup. Ct., Ia Part 5, Justice Stallman  [Not selected for publication in the Official Reports.]

In an effort to control what it characterized as chronic absenteeism, the New York City Department of Corrections adopted a "Chronic Absence Policy" [Department of Corrections Directive 22583-A].

The policy, which applied to any New York City correction officer who was out sick more than 12 days in a 12-month period (excluding absences for certain specified reasons), provided that an individual determined to have a "chronic absenteeism" problem could lose of one or more of the following discretionary benefits and privileges:

1. Assignment to a steady tour;

2. Assignment to a specified post or duties;

3. Access to voluntary overtime;

4. Promotions;

5. Secondary employment;

6. Assignment to preferential/special units or commands; and

7. Transfers.

Norman Seabrook, as president of the New York City Correction Officers' Benevolent Association, sued the City on behalf of all of the City's correction officers. Seabrook contended that the directive violates Sections 75 and 76 of the Civil Service Law [CSL]. Seabrook's theory: The directive imposes disciplinary sanctions without providing the individual with the notice and hearing required by Section 75 as a condition precedent to initiating a disciplinary action.

The City, on the other hand, contended that its directive did not authorize the imposition of any of the penalties set forth in CSL Section 75(3) and thus does not, on its face, violate CSL Section 75. It also argued that its directive did not violate Section 76, which applies only to persons "aggrieved by a penalty or punishment ... imposed pursuant to [CSL Section 75]."

The court agreed and dismissed Seabrook's petition.

The City conceded that its directive was promulgated unilaterally and does not afford certain of the protections that CSL Sections 75 and 76 provide to employees. However, argued the City, Sections 75 and 76 are inapplicable here because the provisions of the Directive do not include any of the sanctions or penalties set out in CSL Section 75(3) with respect to a correction officer deemed to be a "chronic absentee."

Justice Stallman said that CSL Section 75 specifically limits the imposition of disciplinary penalties to those set out in the section. The employer may not impose penalties exceeding those set by statute. As an example of this principle, Justice Stallman cited Cepeda v Koehler, 159 AD2d 290. In Cepeda the court held that a penalty consisting of forfeiture of 15 vacation days plus the payment of $1,500 fine violated the penalty provisions of Section 75, which only sanctions the imposition of a "single penalty" from among those enumerated.

In another multiple penalty case, Matteson v City of Oswego, 588 NYS2d 472, the Appellate Division overturned the penalties imposed by the appointing authority and remanded the matter for the imposition of a new, appropriate penalty.

Oswego had imposed the following penalties on Matteson: (1) suspension without pay for 30 days; and (2) demotion to a lower grade position; and (3) restitution of $3,699.48.

The Appellate Division held that the penalty given was contrary to law in that "the imposition of multiple penalties was improper" under 75.3 of the Civil Service Law.

As to the issue of the directive providing for restitution of the $3699.48, "restitution" is not one of the authorized penalties set out in 75.3. Thus, it may be necessary for the employer to attempt to recover this amount through a separate proceeding if the employee does not elect to make such restitution.

In contrast, in cases involving the imposition of a penalty by an arbitrator pursuant to a "contract disciplinary procedure" the courts have held that the only limitations on the penalty to be imposed is the sound judgment of the arbitrator.

However, said Justice Stallman, the "[f]acial validity of the Directive does not leave the Union and its members entirely without recourse." The decision notes that the Union had filed an Improper Practice Petition, administratively challenging DOC's unilateral imposition of the Directive with the New York City Office of Labor Relations.

Further, said the court, "implementation of the Directive in a specific individual case may be challenged as arbitrary and capricious."

The decision also points out that "if transfers pursuant to the Directive constitute demotions within the meaning of CSL Section 75, or if actions pursuant to the Directive otherwise constitute substantive penalties enumerated by CSL Section 75, they may be challenged in specific cases where appropriate.

An entity not a party to a collective bargaining agreement negotiated pursuant to the Taylor Law may not be bound by its terms

An entity not a party to a collective bargaining agreement negotiated pursuant to the Taylor Law may not be bound by its terms

Matter of Council of School Supervisors & Adm'rs, Local 1 v New York City Dept. of Educ., 87 AD3d 883

The Council filed a contract grievance in response to a city-wide plan applicable to all city agencies that reduced the number of parking permits issued to municipal workers for parking on city streets. Prior to this, parking permits were distributed “based on demand” rather than the parking spaces actually available.

Council argued that any reduction in the parking permits issued to Council members violated a provision of the collective bargaining agreement between the Council and the Department of Education and thus the Department could not make such a change without first negotiation with it.

The arbitrator agreed, finding that the permits policy change was a proper subject of bargaining as it "constituted a significant and adverse alteration of the bargaining unit members' working conditions" and directed the Department to return all such permits to unit personnel until negotiations could be conducted with the Department over the proposed reductions.

When the Council asked the court to confirm the arbitration award the City “cross-moved” to vacate the award contending that the award (1) violated strong public policy; (2) the arbitrator vastly exceeded his authority; and (3) the arbitration award was irrational. 

The Appellate Division, after noting that it is “well-settled law that an arbitration award will be vacated only where ‘it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation on [the arbitrator's] power,’ citing Matter of Brown & Williamson Tobacco Corp. v Chesley, 7 AD3d 368, decided that in this instance the Department’s arguments met this test.

The court pointed out that the Mayor [and the “non-party” City Department of Transportation] have the power under the NY Constitution [Article IX, § 2(a),(c)] and various State and local law and its Administrative Code to regulate traffic in the City streets, as well as parking. 

Here, said the Appellate Division, the award directs the Department of Education to issue permits, a power vested in the Department of Transportation. In effect, the arbitrator directed Education to exercise a power it did not possess, thus exceeding his authority, which action was compounded by his doing so “in an entirely irrational way.”


In explaining the rationale underlying its ruling, the Appellate Division commented that, in its view, “… the agreement was forged between the Council and Education and Transportation was not a party to the collective bargaining agreement and cannot be bound by it. DOT did not agree to issue parking permits to any CSA member who demanded a permit. 

Freedom of information [FOIL] requests for information concerning health insurance plans

Freedom of information [FOIL] requests for information concerning health insurance plans
Passino v Jefferson-Lewis CSD, 277 A.D.2d 1028

A number of school districts participate in "a municipal cooperative health benefit plan" [SEHP] in order to provide health insurance benefits to the employees and retirees of the participating districts. The plan had been established pursuant to a municipal cooperation agreement.

Passino and another teacher covered under the health insurance plan demanded that SEHP provide it with certain information pursuant to the Freedom of Information Law [FOIL]. SEHP refused and the teachers sued. As it turned out, they won the battle but lost the war.

First the Appellate Division ruled that SEHP is an "agency" subject to FOIL requests because it was created to benefit public employers by allowing them "to share, in whole or part, the costs of self-funding employee health benefit plans; provide ... school districts and other public employers with an alternative approach to stabilize health claim costs; and enhance negotiating power with health providers by spreading such costs among a larger pool of risks" in accordance with Section 4701(a) of the Insurance Law.”

Because SEHP exists only to benefit public employers in their effort to provide health insurance to their employees, the court rejected SEHP's claim that it is "it is a private entity akin to a private insurance company."

However, said the court, the records demanded by Passino are exempt from disclosure under FOIL because SEHP "is a commercial enterprise,” and to permit disclosure of the records would "cause substantial injury to [its] competitive position," citing Encore College Bookstores v Auxiliary Service Corp., 87 NY2d 410.

Employee terminated for falsifying time cards

Employee terminated for falsifying time cards
Colon v Crew, App. Div., Second Dept., 278 A.D.2d 234

A disciplinary hearing officer found Supervisor of School Maintenance Workers Jose Colon guilty of falsifying information his time card on 236 occasions within a 14-month period. The penalty imposed: dismissal.

The Appellate Division rejected Colon's appeal, finding that the determination of the hearing officer was supported by substantial evidence.

As to the penalty imposed, termination, the court said that the penalty was not so disproportionate to the misconduct as to be shocking to one's sense of fairness, citing the Pell doctrine [Pell v Board of Education, 34 NY2d 222].

Unemployment insurance benefits denied individual terminated for to follow employer's procedure

Unemployment insurance benefits denied individual terminated after failing to  follow employer's procedure
Cordova v Commissioner of Labor, 277 A.D.2d 623

Sonia Cordova's application for unemployment insurance benefits was rejected by the Unemployment Insurance Appeals Board after it determined that she was disqualified for benefits because she was terminated from employment for misconduct.

Cordova, the program director at a senior citizen center, was dismissed because she purchased furniture without soliciting bids from vendors or obtaining the requisite written approval for such purchases in violation of her employer's policies and procedures.

The Appellate Division sustained the Board's decision, commenting that "[g]iven [Cordova's] knowing disregard of the employer's purchasing policy and prior conduct, substantial evidence supports the decision of the Unemployment Insurance Appeal Board ruling that claimant engaged in disqualifying misconduct."