Failure to designate the §75 disciplinary action hearing officer in writing is a fatal procedural defect

Failure to designate the §75 disciplinary action hearing officer in writing is a fatal procedural defect 

Arthur v  Soares,  2012 NY Slip Op 04255, Appellate Division, 3^rd Dept.

The Albany County District Attorney, P. David Soares,  filed disciplinary charges pursuant to §75 of the Civil Service Law against one of his subordinates, D. Richard Arthur, then serving as the office’s Director of Administration.

The Hearing Officer found Arthur guilty of the charges and recommended that he be terminated from his position. Soares adopted the hearing officer’s findings and recommendation and dismissed Arthur from his position. Arthur file a petition pursuant to Article 78 seeking a court order vacating Soares' action.

The Appellate Division annulled Soares' decision, finding “the record evinces that the Hearing Officer lacked jurisdiction.” and directed that Arthur be reinstated to his former position with back pay and benefits.*

The court noted that Civil Service Law §75(2), provides that a hearing on employee disciplinary charges "shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a . . . person designated by such officer or body in writing for that purpose" [emphasis supplied].

It is well settled, said the Appellate Division, that absent "a written delegation authorizing a deputy or other person to conduct the hearing," the hearing officer did not have jurisdiction to conduct the §75 disciplinary hearing,  citing Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385, among other decisions.

Significantly, the Appellate Division, Third Department had earlier ruled that the requirements of Civil Service Law §75(2) could be satisfied by a written record of such designation such as the minutes of a board meeting at which a resolution was adopted appointing the hearing officer or a letter to the hearing officer advising him or her that the official designation has taken place. In contrast, the court observed that “correspondence to the hearing officer that does not reference the official designation is insufficient, as is written notice to the [accused] of the hearing officer's identity.”

The Appellate Division found that there was no evidence in the record on appeal that the appointing authority had ever designated the Hearing Officer in a writing sufficient to satisfy the statutory requirement. The court specifically noted that reference to the designation of the hearing officer in the notice of charges sent to Arthur is not sufficient in the absence of any evidence of the written designation itself.”**

In addition, the employee’s failure to object to the absence of such written designation “is of no moment, inasmuch as this jurisdictional defect cannot be waived,” said the court, citing Gardner v Coxsackie-Athens Cent. School Dist. Bd. of Educ., 92 AD3d at 1095. This clearly implies that the individual being disciplined has no duty to inform the appointing authority of this procedural defect.

As the Hearing Officer lacked jurisdiction to conduct the hearing, his determination and Soares’ adoption thereof are nullities and Arthur, said the court, “must be restored to his former position with back pay and benefits.”

The court also noted that while courts employ the substantial evidence standard of review in resolving challenges to Civil Service Law §75 determinations, the disciplinary hearing officer does not review an employer's disciplinary actions taken against a public employee "to determine whether those actions were undertaken based upon substantial evidence," as occurred in Arthur's disciplinary proceeding; rather," it remains the responsibility of the hearing officer to weigh the evidence and resolve credibility determinations."

Further, said the court, "administrative findings of fact must be made in such a manner that the parties may be assured that the decision is based on the evidence in the record, uninfluenced by extralegal considerations, so as to permit intelligent challenge by an aggrieved party and adequate judicial review."

* The Appellate Division also held that the hearing officer “did not properly weigh the evidence, and failed to adequately detail the specific factual findings and hearing evidence relied upon.”

** Such notice to the accused has been deemed to satisfy the statutory mandate when the appointing authority separately issues a written resolution incorporating the notice by reference (Scharf v Levittown Union Free School Dist., 294 AD2d 508, lv denied 98 NY2d 613).

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04255.htm

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Employer’s abolishment of a position challenged

Employer’s abolishment of a position challenged
Eugenio v City of Yonkers, N.Y, 2012 NY Slip Op 04006, Appellate Division, Second Department

When the City Council of the City of Yonkers abolished the position of Clerk II Spanish Speaking, the former incumbent filed an Article 78 petition seeking a court order reinstating her to her former position with back pay. Supreme Court denied the petition and the Appellate Division affirmed the lower court’s dismissal of the petition.

The Appellate Division explained that "[A] public employer may abolish civil service positions for the purpose of economy or efficiency." In the event that action is challenged, the challenger “has the burden of proving that the employer did not act in good faith in abolishing the position."

Finding that Supreme Court properly determined that the former incumbent failed to sustain her burden of proving her position was abolished in bad faith, the Appellate Division commented that under the circumstances, the former employee’s request for further inquiry amounted to "no more than an expression of hope insufficient to warrant deferral of judgment"

As to mechanics involved in abolishing a position, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee from his or her position pursuant to these §§80 and 80-a of the Civil Service Law (1976 Opinions of the Attorney General 7).

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04006.htm

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Changing the employees’ tours of duty and work schedules alleged a violation of the employer’s duty to bargain in good faith

Changing the employees’ tours of duty and work schedules alleged a violation of the employer’s duty to bargain in good faith

Matter of the Town of Fishkill, Decisions of the Public Employment Relations Board, U-27331, U-27568

The Board affirmed a decision of an ALJ dismissing a portion of an improper practice charge filed by PBA alleging that the Town of Fishkill (Town) violated §§209-a.1(d) and (e) of the Public Employees’ Fair Employment Act (Act) when the Town changed the tours of duty and work schedules of two PBA officers thereby reducing their total weekly hours of work.

The Board rejected, as meritless, the PBA’s assertion that the ALJ misconstrued the allegations of the charge with the Board citing to the specific allegations of the charge.

The Board also rejected PBA’s claim that the ALJ erred in her conclusion regarding the number of hours worked by the two PBA officers noting that the evidence presented concerning the respective length of tours and workweeks was incomplete and confusing, at best.

Finally, the Board affirmed the ALJ’s conclusion that the Town had satisfied its duty to bargaining under the Act.

Due to the fact that the relevant contractual terms could reasonably be interpreted to have more than one meaning, the Board considered parol evidence in the record in determining that the Town satisfied its duty to negotiate the at-issue subject. 

Expulsion from a membership organization

Expulsion from a membership organization
Dormer v Suffolk County Police Benevolent Assn., Inc., 2012 NY Slip Op 03979, Appellate Division, Second Department

The then Police Commissioner of Suffolk County and the then Deputy Police Commissioner of Suffolk County sued the Suffolk County Police Benevolent Association, Inc., [PBA] and the Superior Officers Association of the Police Department of the County of Suffolk, [SOA] contending that their expulsions from these organizations was "illegal and improper."

Both the Commissioner and the Deputy Commission contended that they were expelled from the PBA and the SOA in retaliation for following official directives which required them to transfer responsibility for patrolling certain roadways on Long Island from the Suffolk County Police Department to the Office of the Sheriff, claiming that their expulsion had an adverse effect on them due to the loss of a life insurance policy. They sought a court order reinstating their membership “with full benefits.”

As their petitions were dismissed by Supreme Court as untimely, which ruling was affirmed by the Appellate Division, the merits of their claims were never addressed by the courts.

However, assuming, but not deciding, that the PBA and the SOA were recognized or certified for purposes of collective bargaining with the Suffolk County Police Department, as both the Commissioner and the Deputy Commissioner were expelled from their “membership” in the PBA and the SOA, presumably neither the Commissioner nor the Deputy Commissioner positions had been designated managerial or confidential within the meaning of §214 of the Civil Service Law [the Taylor Law].

§214 provides, in pertinent part, that “ No managerial or confidential employee, as determined pursuant to subdivision seven of section two hundred one of this article, shall hold office in or be a member of any employee organization which is or seeks to become pursuant to this article the certified or recognized representative of the public employees employed by the public employer of such managerial or confidential employee.”

§201.7(a) of the Civil Service Law provides, in pertinent part, that “The term ‘public employee’ means any person holding a position by appointment or employment in the service of a public employer, except that such term shall not include for the purposes of any provision of this article … persons who may reasonably be designated from time to time as managerial or confidential.”

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The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03979.htm

Filing exceptions to a PERB administrative law judge’s determination

Filing exceptions to a PERB administrative law judge’s determination

Matter of County of Ontario and Ontario County Sheriff [Joint employers] PERB decision U-30353

The Board rejected the Joint Employer’s contention that it had a right to file exceptions to an ALJ’s interim decision denying its motion to dismiss a charge, without the necessity of seeking leave to file exceptions from the Board pursuant to § 212.4(h) of the Rules of Procedure (Rules).

The Board reached its conclusion based upon well-established precedent requiring a party to seek permission to file exceptions from interim decisions and rulings pursuant to §212.4(h) of the Rules.

Nevertheless, the Board treated the Joint Employer’s pleading as a motion for leave to file exceptions and concluded that the Joint Employer failed to demonstrate extraordinary circumstances.

Pursuant to §205.5(d) of the Public Employees’ Fair Employment Act (Act), PERB has exclusive jurisdiction to determine whether an employer has engaged in an improper practice in violation of §209-a.1 of the Act. The fact that a notice of claim was served asserting an alternative motivational theory underlying the alleged retaliation did not deprive PERB of jurisdiction to hear the pending charge, nor did it constitute a waiver of jurisdiction.

The Board noted, however, that although the pursuit of ancillary litigation may not deprive of PERB of jurisdiction or constitute a waiver, the results of such litigation may, in certain circumstances, form the basis for a collateral estoppel defense to a charge pending at PERB. 

Practice Tip noted by PERB staff:

Practitioners are reminded that under Board precedent, motions for leave to file exceptions are very rarely granted due to the strict standard requiring a movant to demonstrate extraordinary circumstances. This high standard is applied by the Board based upon the view that it is far more efficient to await the final disposition of the merits of a charge before examining interim determinations and to avoid unnecessary delays in the processing of improper practice charges.