Public policy considerations affecting arbitration

Public policy considerations affecting arbitration

Sullivan County v Sullivan County Employees Asso., 235 A.D.2d 748

One of the issues in this appeal heard by the Appellate Division concerned Sullivan County's claim that the arbitration of a grievance as demanded by the Sullivan County Employees Association violated of "public policy considerations" and should be stayed.

The Association had demanded arbitration when the County denied a grievance based on the Association's claim that its action modifying a Taylor Law contract with another collective bargaining unit had triggered the "parity clause" in its agreement. The "parity clause" provided that if another bargaining unit negotiated a salary increase, those increases would be operative for employees covered by the agreement.

The Appellate Division said that to invoke a violation of public policy as justification for staying arbitration, "the violation must amount to the equivalent of a gross illegality." Although Sullivan County claimed that "parity clauses" were illegal, the Appellate Division noted that "such clauses are not per se invalid but require a case-by-case analysis."

The Courts indicated that the matter was not yet ripe for judicial consideration, commenting that if "the arbitrator's interpretation of the agreement may offend public policy, such a potential does not mandate a stay of arbitration." Rather, said the Court, if that turns out to be the case, the remedy is vacatur (reversal) of the award.

Law enforcement personnel may be prohibited from associating with persons suspected of illegal activities.

Law enforcement personnel may be prohibited from associating with persons suspected of illegal activities.

Matter of Matter of Hastings v City of Sherrill, 2011 NY Slip Op 09484, Appellate Division, Fourth Department

The City of Sherrill’s Chief of Police, James T. Hastings, was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he was involved with "person(s) notoriously suspected of illegal activities … outside [the Chief’s] official duties." The Chief was found guilty of the charges and was terminated from his position.

The person suspected of “illegal activities” with whom the Chief was “involved” was the Chief’s 29-year-old son.

The Appellate Division, sustaining the City’s determination, ruled that the departmental regulations that the Chief was found to have violated “did not impermissibly interfere with his constitutionally protected right of intimate association.” Citing Morrisette v Dilworth, 59 NY2d 449, the court said that "[I]t is well established that it is within the State's power to regulate the conduct of its police officers even when that conduct involves the exercise of a constitutionally protected right."

The court also commented that “in light of the age of Chief’s son and the absence of any evidence that his son was mentally incapacitated, this case does not involve the constitutionally protected interest in custodial relationships between parents and their children.”

Other decisions in which a police officer was served with administrative disciplinary charges alleging he or she had  associated with persons alleged to have been engaged in criminal activities include Brinson v Safir, 255 AD2d 247, leave to appeal denied 93 NY2d 805; Richardson v Safir, 258 AD2d 328 and Delgado v Kerik, 294 A.D.2d 227.

The Hastings decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09484.htm

Law enforcement personnel may be prohibited from associating with persons suspected of illegal activities.

Law enforcement personnel may be prohibited from associating with persons suspected of illegal activities.

Matter of Matter of Hastings v City of Sherrill, 90 AD3 1586

The City of Sherrill’s Chief of Police, James T. Hastings, was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he was involved with "person(s) notoriously suspected of illegal activities … outside [the Chief’s] official duties." The Chief was found guilty of the charges and was terminated from his position.

The person suspected of “illegal activities” with whom the Chief was “involved” was the Chief’s 29-year-old son.

The Appellate Division, sustaining the City’s determination, ruled that the departmental regulations that the Chief was found to have violated “did not impermissibly interfere with his constitutionally protected right of intimate association.” Citing Morrisette v Dilworth, 59 NY2d 449, the court said that "[I]t is well established that it is within the State's power to regulate the conduct of its police officers even when that conduct involves the exercise of a constitutionally protected right."

The court also commented that “in light of the age of Chief’s son and the absence of any evidence that his son was mentally incapacitated, this case does not involve the constitutionally protected interest in custodial relationships between parents and their children.”

Other decisions in which a police officer was served with administrative disciplinary charges alleging he or she had  associated with persons alleged to have been engaged in criminal activities include Brinson v Safir, 255 AD2d 247, leave to appeal denied 93 NY2d 805; Richardson v Safir, 258 AD2d 328 and Delgado v Kerik, 294 A.D.2d 227.

The Hastings decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09484.htm

Employer may recover tuition costs after teacher did not return from a paid sabbatical leave

Employer may recover tuition costs after teacher did not return from a paid sabbatical leave

Trumansburg Central School District v. Chalone¸ 87 A.D.2d 921

In the Trumansburg Central School District case the Appellate Division agreed that the District could recover the salary paid to an employee during a sabbatical leave when the employee failed to return as agreed.

In a similar situation, the State Comptroller ruled that a Village may adopt a resolution requiring employees who are sent to schools for specialized training at the Village’s expense in order to qualify for a promotion to reimburse the Village for the cost of such training if they resign within a specified period of time (Op. St. Comp. 82-4).           

Stopping the hearing creates a problem

Stopping the hearing creates a problem

Swanteson v. City School District of the City of New York, 88 A.D.2d 907

A person serving as a hearing officer may be tempted to terminate or “shorten” a hearing because one or more of the participants becomes unruly or abusive.

A hearing officer did stop the hearing before the employee had an opportunity to make a “statement” specifically permitted by the controlling rules of procedure because of “personal vituperation and ... abrasive behavior, despite repeated warnings.”

The hearing officer then sustained the employee’s unsatisfactory service rating, which was later affirmed by the Chancellor of the Board of Education.

Swanteson sued, arguing that the Board had failed to follow its own procedures.

The Appellate Division agreed and reversing a lower Court, holding that the failure to provide Swanteson with the “Review Format” was an abuse of the chairperson’s discretionary powers to make necessary “adjustments” in the format and insure an “expeditious and non-repetitious presentation ... denied (Swanteson) a substantial right.”

The matter was then sent back to the District with instructions that Swanteson “be given the opportunity to exercise his right to make a presentation and statement on his own behalf as provided in the Review Format.”

The termination of a hearing because of “disruptive behavior” apparently will not be considered a reasonable and proper exercise of discretion.