The arbitrator does not have the power to modify an arbitration award that has been judicially confirmed

The arbitrator does not have the power to modify an arbitration award that has been judicially confirmed

Kalyanaram v New York Inst. of Tech., 2012 NY Slip Op 00309, Appellate Division, First Department

The Appellate Division rejected a party to the arbitration assertion that disputes concerning the performance of the remedy provisions of the arbitration award should be determined by the arbitrator as being without merit in this instance.

The court explained that “Since a final arbitration award has been rendered finally resolving the dispute between the parties, and the award has been judicially confirmed (79 AD3d 418 [2010], lv denied 17 NY3d 712 [2011]), a judgment enforceable by the courts has been entered (see CPLR 7514),” the arbitrator is functus officio, “without power to amend or modify the final award.”

Functus officio means "having performed his office." Where, as here, there has been a final judicial determination concerning the matter, the arbitrator no longer has jurisdiction.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00309.htm

Application seeking the removal of a school official must give the official notice of the application being filed

Application seeking the removal of a school official must give the official notice of the application being filed

Application of Donald B. Oglesby regarding an election, and application for the removal of Superintendent Lisa Wiles, board members Karin Osterhoudt and Phillip Mattracion, and teachers Denise Moore, James Pidel and Ann Beukelman, Commissioner of Education Decision #16,311

The Commissioner viewed Donald B. Oglesby’s applications as challenging an election to select members of the school board and to remove the school superintendent and certain board members and teachers from their respective positions.

As to the application for removal of the school officials and teachers, the Commissioner said that it must be denied because the notice of petition is defective.  

Commissioner’s regulations require that the notice accompanying a removal application specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, Oglesby failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  

The Commissioner explained that “A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent.”

Further, the Commissioner rejected Oglesby’s application to remove certain teachers from their positions, indicating that tenured teachers are school district employees, not school officers, and are thus not subject to removal under Education Law §306.

Other technical and substantive issues addressed by the Commissioner in considering Oglesby’s application included:

Verification of the application: §275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified; Oglesby’s reply was not verified in violation of §275.5 and not considered by the Commissioner.

The Commissioner declining to consider material submitted in unsworn documents from Oglesby, noting that additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner.

The failure of Oglesby to serve the named individuals in his application with copies of tape recordings or video tapes that were “were alleged to be attached as exhibits to the petition” as otherwise required by §275.8(a) of the Commissioner’s regulations -- a “copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers . . . shall be personally served upon each named respondent . . . .” 

As to newspaper articles submitted by Oglesby, the Commissioner said that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein.”

The Commissioner rejected school districts claim that certain of the act complained of were untimely. The Commissioner held that it would be “unreasonable and detrimental to the efficient resolution of a petitioner’s claims to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to the election” complaint. In such circumstances, even though the appeal involves acts occurring more than 30 days from the date the appeal is commenced, I have declined to dismiss the appeal as untimely provided the appeal is commenced within 30 days of the election [citations omitted].

Finally, the Commissioner said that to the extent that Oglesby raised claims that do not arise under the Education Law, such as defamation and slander, he lacked lack jurisdiction over such claims.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16311.html

Pre-existent non-work-related condition not an absolute bar to eligibility for General Municipal Law §207-c disability benefits

Pre-existent non-work-related condition not an absolute bar to eligibility for General Municipal Law §207-c disability benefits
Matter of Brunner v Bertoni, 2012 NY Slip Op 00167, Appellate Division, Third Department

A police officer sustained serious injuries in an off-duty motorcycle accident. Upon his return to work with the Village of Endicott Police Department, he undertook mandatory firearms training that involved repeatedly firing his sidearm with his left hand. He could not complete the training due to pain in his left thumb and, as a result, stopped working for eight months until learning how to shoot his weapon with his right hand.

The police officer had applied for benefits pursuant to General Municipal Law §207-c. His application was ultimately denied by the Mayor and the officer filed an Article 78 petition seeking a court order directing the Village to provide him with §207-c benefits.

The Appellate Division sustained the Supreme Court’s dismissal of the petition explaining that although "[p]reexisting non-work-related conditions [would] not bar recovery . . . [if the police officer’s] job duties were a direct cause of the disability," substantial evidence in the record amply supported the Mayor’s finding that “they were not a direct cause” in this instance.

General Municipal Law §207-c provides eligible law enforcement personnel with benefits, including full wages, in the event they are injured in the performance of their duties. Such individuals, however, must "prove a direct causal relationship between job duties and the resulting illness or injury" in order to be entitled to such benefits.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00167.htm

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Redesigned New York State’s organization chart proposes to consolidate the Department of Civil Service and the Governor’s Office of Employee Relations into a single unit

Redesigned New York State’s organization chart proposes to consolidate the Department of Civil Service and the Governor’s Office of Employee Relations into a single unit

Source: Office of the Governor

In his 2012-2013 Executive Budget and Reform Plan, Governor Cuomo stated that in  2011-12 the State started the process of merging and consolidating State agencies to achieve efficiencies and reduce redundancies.

The Governor indicated that “This process continues ... with consolidations, ... resulting in better, streamlined services." 

Among the proposed mergers set out in the 2012-2013 proposed budget: merging the Department of Civil Service and the Governor’s Office of Employee Relations "to provide the State with a single entity responsible for a strategic approach to workforce management, including recruiting, training, promoting, and developing a best in class workforce for the people.”

The Governor's 2012-2013 Executive Budget and Reform Plan is posted on the Internet at:

http://publications.budget.ny.gov/eBudget1213/fy1213littlebook/BriefingBook.pdf

Civil Service Commission’s decision concerning the fitness of a candidate for appointment final unless found irrational or arbitrary

Civil Service Commission’s decision concerning the fitness of a candidate for appointment final unless found irrational or arbitrary

Rogan v Nassau County Civ. Serv. Commn, 2012 NY Slip Op 00217, Appellate Division, Second Department

A candidate in Nassau County”s Police Officer Examination No. 7000 failed to attain a passing score on the physical fitness screening test.

The candidate sue, contending that the Commission acted irrationally or arbitrarily and capriciously in relying upon a proctor's assessment that the candidate failed to complete the number of sit-ups required to pass the physical fitness screening test promulgated by the State’s Municipal Police Training Council.

Supreme Court denied his petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division, noting that “An appointing authority* has wide discretion in determining the fitness of candidates,” explained that such discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”

A court, said the Appellate Division, “may not substitute its judgment for that of the agency responsible for making the determination and, as long as the administrative determination is not irrational or arbitrary and capricious, [it] may not annul it.”

* Although this decision may give the reader the impression that the Commission was the appointing authority with respect to police officers, a Civil Service Commission is the agency responsible for determining the eligibility of candidates seeking appointment to positions in the competitive class of the classified service by examination and then certifying those found eligible and qualified to the appointing authority for selection for appointment to the position. [People v Gaffney, 201 NY 535]

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00217.htm