Substantial evidence test used to resolve challenges to an administrative decision

Substantial evidence test used to resolve challenges to an administrative decision
Matter of Incorporated Vil. of Lake Success v New York State Pub. Empl. Relations Bd., 41 AD3d 599

The Appellate Division held that the determination of the New York State Public Employment Relations Board, confirming the determination of an administrative law judge, made after a hearing, granting the petition of the Civil Service Employees Association to place certain positions into an already existing negotiating unit was supported by substantial evidence. 

Such evidence, said the court, consisted of PERB’s finding that the incumbents of those positions and the CSEA unit employees share a community of interest, that there is no conflict of interest that would affect the conduct of meaningful and effective negotiations, and that the placement would not cause administrative inconvenience. 

Accordingly, PERB's determination had to be sustained.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2007/2007_05275.htm

Employee’s objection to the introduction of a “911 recording” in a disciplinary hearing rejected

Employee’s objection to the introduction of a “911 recording” in a disciplinary hearing rejected
Matter of Dockery v New York City Hous. Auth., 51 AD3d 575

The Appellate Division held that the Housing Authorit’s termination of its employee based on evidence contained on a “911 recordings.”

The court explained that “911 recordings were properly admitted into evidence at the [administrative] disciplinary hearing since they were not official records relating to [the employee’s] arrest or prosecution, and thus were not subject to the sealing statute (CPL 160.50; see Matter of Harper v Angiolillo, 89 NY2d 761, 767 [1997].”

Under the circumstances, the Appellate Division ruled that “The penalty of dismissal does not shock the conscience,” citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2008/2008_04753.htm

The Open Meetings Law requires the public body to indicate the particular reasons for its going into an executive session

The Open Meetings Law requires the public body to indicate the particular reasons for its going into an executive session

Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 2012 NY Slip Op 00623, Appellate Division, Fourth Department

David Zehner alleged that the Jordan-Elbridge Central School District had engaged in a pattern of violating New York's Open Meetings Law (Public Officers Law §100 et seq.) with respect to its going into executive session. Supreme Court agreed.

Affirming the lower court’s ruling, the Appellate Division said that the Open Meetings Law [OML] provides that "Every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with [Section 105]" Here, said the court, the school district had violated the OML on three occasions.

Although the OML does allow a public body to go into executive session, the Appellate Division noted that “the topics that may be discussed [in such an executive session] are circumscribed by statute and include matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person.”

The problem underlying this action was that the school district “merely reciting statutory categories for going into executive session without setting forth more precise reasons for doing so.”  Citing Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, the Appellate Division explained that §105 is to be “strictly construed,” and the real purpose of an executive session will be carefully scrutinized "lest the … mandate [of the Open Meetings Law] be thwarted by thinly veiled references to the areas delineated thereunder."

Noting that the Open Meetings Law provides that "costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party,” the Appellate Division said that it did not perceive any abuse by the Supreme Court, in it's exercise of its discretion, awarding attorney fees to Zehner.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00623.htm

New York City required to pay the 3% employees’ contribution for retirement on behalf its Tier III police officers and firefighters

New York City required to pay the 3% employees’ contribution for retirement on behalf its Tier III police officers and firefighters

Lynch v City of New York, Supreme Court, New York County, Justice Carol Edmead, Index 650822 [Not selected for publication in the Official Reports]

New York City currently pays “one half of the rate” of employee contributions for retirement that it had earlier assumed* on behalf of its Tier I and Tier II members of the New York City Police Pension Fund and the New York City Fire Department Pension Fund. The City had assumed making such contributions in order to provide such individuals with “increased take-home pay.”

The City, however, discontinued making “employee contributions” on behalf of police and fire personnel enrolled as Tier III members of those retirement systems effective July 1, 2009. Such enrollees were otherwise required to pay 3% of their annual compensation as an employee contribution for 25 years.

Justice Edmead ruled that the City of New York violated §480(b)(i) and (ii) of the Retirement and Social Security Law when it commenced to require New York City police officers and firefighters initially appointed on or after July 1, 2009 to pay the full employee contributions otherwise required to the New York City Police Pension Fund and to the New York City Fire Department Pension Fund, as the case may be, upon their enrollment as Tier III members of their respective retirement systems.

The court rejected the City’s claim that such police officers and firefighters were required to pay the statutorily required 3% of their annual compensation as their "employee contribution" toward retirement “for 25 years,” explaining that when the relevant provisions of law were initially enacted there was no expectation that eventually a Tier III [and additional Tiers] might be established by these Retirement Systems.

Finding that RSSL §480(b) is applicable to police officers and firefighters who are in Tier III, Justice granted the Patrolmen’s Benevolent Association of the City of New York, the Captain’s Endowment Association of the City of New York and the Uniformed Fire Officers Association motion for summary judgment.

* See RSSL §480(b)(i)

A copy of Justice Edmead’s decision is available from NYPPL. Send your request by e-mail to publications@nycap.rr.com .

Union did not violate its duty of fair representation when it declined to submit a provisional employee’s disciplinary dismissal to arbitration

Union did not violate its duty of fair representation when it declined to submit a provisional employee’s disciplinary dismissal to arbitration
Mahinda v Board of Collective Bargaining, 2012 NY Slip Op 00636, Appellate Division, First Department

After an informal conference and "Step II" hearing, disciplinary allegations against Josephine Mahinda, a provisional employee, were sustained, and her employment with the New York City Department of Transportation was terminated.

Subsequently Mahinda failed to establish that her employee organization, the Organization of Staff Analysts, [OAS], breached its duty of fair representation by failing to advance to arbitration the grievance arising out of her termination. 

Although Mahinda argued that OSA should have processed her grievance to arbitration, the Appellate Division said that she had not established that an agreement providing for provisional disciplinary procedures had been negotiated pursuant to §65(5)(g)* of the Civil Service Law. §65(5)(g) authorizes the City and certain other public employers to enter such agreements in the course of collective bargaining..

After considering other theories advanced by Mahinda to support her argument that she was entitled to submit the matter to arbitration, the Appellate Division ruled that “there was no basis on which to grant [Mahinda’s] request….”

Nor, said the court, was there any basis for granting her request to review the City's underlying decision to terminate her. As a provisional employee, Mahinda could be terminated at any time, "without a hearing, for almost any reason, or for no reason at all," unless such action constituted an unconstitutional or unlawful action.

Finding that Mahinda failed to demonstrate that in terminating her employment the City violated Civil Service Law §65, which governs provisional appointments, or any other constitutional or statutory provision,"nor had  she demonstrated that her employment was terminated in bad faith or that the termination was arbitrary and capricious," the Appellate Division dismissed her appeal

* Civil Service Law §65.5(g) authorizes “The city of New York; and any other entities whose civil service and examinations are administered by the New York City Department of Citywide Administrative Services [DCAS] and an Article 14 [Taylor Law] employee organization, to enter into agreements to provide disciplinary procedures applicable to provisional appointees who have served for a period of 24 months or more in a position which is covered by such an agreement. Further, no such provisional employee is to be deemed to be permanently appointed, nor may such disciplinary procedures be deemed to preclude removal of an employee as a result of the establishment of and appointments from an appropriate eligible list or in accordance with any other provision of law. [N.B. Repealed December 31, 2014]

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00636.htm