Employer’s failing to promulgate rules of conduct addressing prohibited conduct a mitigating factor in setting disciplinary penalty

Employer’s failing to promulgate rules of conduct addressing prohibited conduct a mitigating factor in setting disciplinary penalty

NYC School Construction Authority v Ray, OATH Index # 2188/11

The New York City School Construction Authority alleged that one of its project managers purchased unapproved equipment for his own use and misusing the purchasing process.

Although the manager contended that all the purchases he made were for legitimate business use, OATH Administrative Law Judge Tynia D. Richard found that a number of the purchased items, including a notebook computer, a DVD read/write multi-recorder, an Internet radio, and a Keurig coffee maker, were purchased without authorization and for the manager’s personal benefit.

Judge Richard also found that, although all of the items remained in the work trailer, they were unreasonable purchases for administration of a city contract.

Concluding that the manager’s actions constituted serious misconduct, she recommended a 60-day suspension without pay but did not recommend termination, as sought by the agency.

Judge Richard explained that the agency had failed to adopt rules of conduct that would put project officers on notice that such acts constituted misconduct that could result in termination and the manager’s contrition showed that such rules would have deterred him from undertaking such misconduct.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2188.pdf

Challenging arbitration awards

Challenging arbitration awards

Carroll v Perkle, Appellate Division, 296 AD2d 755, 756, lv dismissed 98 NY2d 764)

Judicial review of an arbitration award has been statutorily limited by Article 75 of the Civil Practice Law and Rules [CPLR]. Essentially an arbitration award stands unless the court determines that one or more defects in the process have been demonstrated:

1. There was corruption, fraud or misconduct in procuring an award;

2. The arbitrator was not impartial;

3. The arbitrator exceeded his or her authority;

4.the procedures set out in Article 75 were not followed.

In addition to these statutory reasons for vacating the arbitration award, the courts have declared awards found to violate a strong public policy to be null and void.

Challenges to a §3020-a disciplinary decision issued are processed pursuant to Article 75 of the CPLR.[1]

In Carroll, however, the Appellate Division adopted a different standard of review in considering a dismissed employee's effort to vacate an Education Law Section 3020-a disciplinary arbitration award.

Citing Matter of Bernstein [Norwich City School Dist. Bd. Of Education], 282 AD2d 70, the Appellate Division said:

Where, as here, the parties are forced to engage in compulsory arbitration, judicial review under CPLR Article 75 requires that the "award be in accord with due process and supported by adequate evidence in the record."

Accordingly, the Appellate Division concluded, the applicable standard for review of the arbitration award in Carroll's case is whether there was substantial evidence in the record to establish the employee's guilt with respect to the charges levied against him. The court also pointed to CPLR Section 7803[2] as authority to adopt a "substantial evidence" standard in appeals from a §3020-a determination. In the words of the court:

[W]e must determine "whether there is a rational basis in [the whole record] for the findings of fact supporting the [Hearing Panel's recommendation],"

citing 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176.

Christopher Carroll was a tenured guidance counselor. He had 19 years of service with the Rondout Valley CSD. As a guidance counselor he was responsible for, among other things, creating individualized academic plans for students, planning students' courses for the upcoming academic year, analyzing student report cards to determine whether students passed, adjusting academic plans if students failed, and performing annual reviews of student records.

After several students failed to graduate, the Board of Education filed Section 3020-a disciplinary charges against Carroll alleging that he failed to maintain required records, he neglected to provide required remedial assistance for students who failed a Regents Competency Test; he failed to schedule students for required courses; and he falsified a student's record.

The Hearing Panel found Carroll guilty of some, but not all, of the charges. It then determined that under the circumstances, dismissal was the appropriate penalty to be imposed. Carroll was terminated from his position.

Carroll filed a motion to vacate the arbitration award pursuant to Article 75. Supreme Court, relying on CPLR §7511, dismissed his petition, finding that disciplinary arbitration panel neither exceeded its power nor executed an imperfect award.

Carroll appealed the Supreme Court's ruling, contending that the Supreme Court applied too narrow a standard when it limited its review only to those criteria specifically set out in CPLR §7511. The Appellate Division agreed with Carroll, ruling that the appropriate standard of review was whether there was substantial evidence to support the panel's determination with respect to those charges for which the panel had found him guilty. The court then found that all but one of the Hearing Panel's determinations met the substantial evidence in the record standard.

Carroll raised two additional issues in his appeal. He contended that (1) he was denied administrative due process because the Hearing Panel found him guilty of charges that had not been filed against him; and (2) the Hearing Panel failed to consider the school board's failure to provide "remediation" when it determined the penalty.

According to the Appellate Division, the panel found Carroll guilty of intentionally recording that a student had passed a course although the student had failed the course.

Carroll contended that he was never charged with intentionally falsifying records. The charge filed alleged that Carroll was guilty of misconduct when he marked a student's plan card to indicate that the student had passed a course without having taken the course. The Appellate Division held that the charge adequately apprised Carroll that the alleged misconduct amounted to his intentionally falsifying the student's record and dismissed this branch of Carroll's appeal.

The court, however, agreed that Carroll had been denied administrative due process because the Hearing Panel failed to consider "mitigating circumstances" in determining the penalty. The Appellate Division said that the Hearing Panel failed to honor Carroll's request that the Board of Education's "lack of effort to correct his behavior," be considered by the panel in determining appropriate penalty to be imposed.[3]

The Appellate Division said that there was nothing in the record to indicate that the Hearing Panel considered the Board's efforts. if any, to correct Carroll's unacceptable behavior. Accordingly, the Appellate Division vacated the Hearing Panel's "recommendation" as to the penalty to be imposed and directed that the panel reconsider its recommendation.[4]

Although Section 3020-a(5) clearly states that CPLR Article 75 controls with respect to appeals involving §3020-a decisions, in deciding the Carroll appeal the Appellate Division concluded that §3020-a appeals are to be treated as though they were Civil Service Law §75 disciplinary appeals.

The Court of Appeals declined to review the Appellate Division’s ruling.

Further, if the Appellate Division's view that a §3020-a hearing constitutes compulsory arbitration and thus is subject to the substantial evidence test is correct, its determination raises some additional issues.

§3020-a.1 authorizes a school district and an employee organization to negotiate an alternative to the statutory disciplinary procedure set out in §3020-a. These alternative procedures are usually referred to as "contract disciplinary procedures" and typically are processed as "disciplinary grievances." Practically all contract disciplinary procedures mandate, as the final step, binding arbitration.

Does Carroll mean that Article 75 motions to vacate or modify a disciplinary arbitration award resulting from "compulsory" arbitration in a contract disciplinary procedure negotiated pursuant to the Taylor Law is subject to a court's review based on the "substantial evidence" standard rather than limited to the reasons for vacating an award set out in Article 75?

In any event, in view of Carroll, it would be good practice for a disciplinary hearing panel, statutory or negotiated, to explicitly set out its findings of fact and the reasons for its imposing a particular penalty based in its finding that the individual was guilty of one or more of the charges filed against him or her.

Except with respect to the most egregious acts of misconduct, the Carroll decision clearly signals the need, and reasons, for the employer to attempt to undertake remedial efforts to correct or improve an educator's unsatisfactory behavior and performance prior to its filing formal disciplinary charges against the individual. This type of action is usually referred to as "progressive discipline," i.e., the individual is to be provided with notice of his or her need to improve performance and offered assistance, and a reasonable opportunity, to attain this goal.

---

[1] §3020-a..5 provides: 5. Appeal. Not later than ten days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York State supreme court to vacate or modify the decision of the hearing officer pursuant to §7511of the CPLR. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer. [emphasis supplied]

[2] In contrast to the §3020-a(5) appeal procedure , an individual may appeal an adverse Civil Service Law §75 disciplinary decision to the court pursuant to Article 78 of the CPLR or the individual may elect to appeal the determination to the responsible civil service commission rather than to the courts. In such cases the court applies the substantial evidence in the record test to determine whether or not to sustain the administrative decision.

[3] §3020-a(4) provides that "At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including, but not limited to, remediation, peer intervention or an employee assistance plan."

[4] Although the Court used the term "recommendation" in reference to the disciplinary panel's decision as to the penalty, to be imposed, Section 3020-a provides for the Panel's deciding the appropriate penalty to be imposed rather than its recommending a penalty to be imposed to a school board.

Termination following off duty conduct that violated disciplinary probation settlement agreement.

Termination following off duty conduct that violated disciplinary probation settlement agreement.

Sills v Kerik, Appellate Division, First Department, 5 A.D.3d 247

The Appellate Division sustained a ruling by Supreme Court that rejected a former police officer’s attempt to annul his termination while he was on a disciplinary probation.

Edward Sills, dismissed while serving a one-year dismissal probation period. This probationary period reflected a settlement of disciplinary charges based on allegations of driving while intoxicated and being unfit for duty due to consumption of alcohol. Sills sued the New York City Police Department alleging his termination constituted a violation of the Human Rights Law.

According to the ruling, Sills alleged that he is an alcoholic and thus disabled within the meaning of the Human Rights Law (Executive Law §296 [1] [a]). However, the opinion indicates that Sills did not allege that he was seeking rehabilitation at the time of his termination, nor that his drinking at a party in a parking lot just prior to his termination, and then driving home, provided the Department with a basis to believe that his last attempt at rehabilitation, completed less than four months earlier, was unsuccessful.

In the words of the Appellate Division:

The Human Rights Law does not, as in the case herein, protect an individual who, subsequent to the completion of rehabilitation, suffers a relapse and is found guilty of, and is dismissed for, misconduct.

Supreme Court Justice Heitler approved the termination of Sills’ termination from his position pursuant to a "Terminate Probation Agreement." Sills had signed the agreement in settlement of an earlier disciplinary action. The agreement included the following terms and conditions agreed to by Sills:

The Police Commissioner may impose punishment of dismissal or any lesser penalty he deems appropriate at any time during such period [of probation].

I am fully aware of the fact that I am entitled to a Disciplinary Hearing pursuant to applicable laws of the City and State of New York in which I would be entitled to representation, to confront witnesses against me and to appeal an adverse decision rendered after such hearing to a Court or Administrative Agency of proper jurisdiction.

If this penalty is approved by the Police Commissioner, I accept said decision, and as a condition of accepting such decision of the Police Commissioner, I hereby waive any and all rights granted to me under all applicable laws of the City and State of New York and acknowledge that this acceptance is the same as a finding of guilt after a hearing.

Sills and the Department had entered into the agreement after Sills conceded he was guilty of disciplinary charges alleging that he:

1. Wrongfully operating a motor vehicle while under the influence of alcohol or drugs;

2.Wrongfully and without just cause refusing to submit to a Breathalyzer test; and

3.Was unfit for duty due to having consumed an unknown quantity of an intoxicant

rather than proceed to a disciplinary hearing where the penalty sought by the Department was dismissal from the service.

While on disciplinary probation Sills participated in "off duty" beer drinking with some fellow police officers. Citing the terms of the agreement, the Commissioner terminated Sills from his position without a hearing. Sills sued, seeking a court order annulling his termination and reinstating him to his former position with back salary and benefits.

Sills argued that "he did not commit any misconduct and, as such, there was no reason for his termination." He contended that his drinking beer was done on private property and that off-duty police officers are not prohibited from drinking alcohol as long as they remain fit for duty. Sills also claimed employment discrimination, alleging that the Department "sought to rid itself of an employee with a previously admitted drinking problem and used his probation agreement as a pretext for his termination so that he would not be entitled to a hearing.

The Department, on the other hand, argued that at the time it terminated Sills he was under disciplinary probation that provided for his termination "without a hearing and without a statement of reasons absent a constitutional or statutory violation."

Justice Heitler said that a court must consider whether or not Sills termination was unjustified, unduly harsh, arbitrary, capricious or made in bad faith. Justice Heitler concluded that "[a]s long as the dismissal is not made in bad faith, a probationary employee may be dismissed for any reason or for no reason without a hearing or statement of reasons."

According to the decision, Sills had the burden of showing bad faith by the Department and he was unable to meet this burden.

The court also commented that "even in the case of a non-probationary officer, the Commissioner has the right to terminate for purposes of maintaining the integrity of the police department."

The court dismissed Sills petition, stating that as "a policeman with a history of intoxication, ... [he] ignored his history with alcohol; he further didn't appreciate the fact that, despite this history, he was given a second chance ... his being put on probation."

As to Sills claim of unlawful discrimination because of a disability, Justice Heitler said that because "his admitted conduct demonstrates that he is an alcoholic who continues to drink and is not in a rehabilitation program," he cannot claim protection under §296(1) of the Executive Law as that provision only applies in cases of rehabilitated and rehabilitating drug abusers.

Further, said the court, even if [Sills] did fall within the scope of §296, the reason offered by the Police Department for its terminating him "is the maintenance of the integrity of the Police Force, and legitimate and non-discriminatory in nature."

Justice Heitler said that, under the "totality of the circumstances," he found that Sills failed to meet his burden and dismissed his petition in its entirety. As noted above, the Appellate Division dismissed Sills’ appeal in its entirety.

Crediting expert testimony

Crediting expert testimony

Vassello v McCall, App. Div., 296 A.D.2d 815 

Firefighter Paul N. Vassello, claimed that he sustained injuries when he fell while descending from a fire truck in August 1998. He filed an application for performance of duty disability retirement benefits and, one month later, his employer filed an employer application for ordinary disability retirement benefits on his behalf.

The New York State Employees' Retirement System [ERS] rejected both applications. Vassello appealed but the ERS Hearing Officer upheld the Department's administrative denial of both applications, finding that Vassello was not permanently incapacitated from the performance of his duties as a firefighter. The Comptroller adopted the Hearing Officer's findings and Vassello filed an Article 78 action challenging the Comptroller's decision.

One of the points made by the Appellate Division was that the Hearing Officer considered the competing medical opinions offered by the experts testifying on behalf of Vassello and on behalf of ERS and resolved the conflict in favor of ERS. The court said that the Comptroller, in adopting the Hearing Officer's findings, was free to credit the testimony of one medical expert over that of another, citing Meegan v New York State Retirement System, 285 AD2d 892.

In the words of the court, if "the testimony offered by the Retirement System's expert constitutes substantial evidence to support [the Comptroller’s] determination, it will not be disturbed."

PEF announces contract vote count

PEF announces contract vote count

The New York State Public Employees Federation (PEF) at its press conference on Thursday, November 3, at PEF headquarters in Latham, announced that the results of the ballot count for the union’s revised tentative contract agreement with the State.

The vote count announced by AAA was:

27,718 in favor of the proposed contract;

11,645 opposed to the proposed agreement.

PEF is the state’s second-largest state-employee union, representing 55,000 State employees in the Professional, Scientific and Technical Services negotiating unit (PS&T) and other public and private employees.

All ballots were counted by the American Arbitration Association on Thursday morning, November 3, 2011 at the AAA offices in Manhattan.

As a result there will be no layoffs that would have otherwise taken effect on Friday, November 4, 2011.

PEF members rejected the initial propose agreement presented to them on September 27, 2011. The October 15, 2011 four-year revised proposed contract was accepted by the membership.

The text of the contract is posted on the Internet at:
http://www.pef.org/storage/files/tent_contract.pdf