PERB’s policy of initially deferring to a contract arbitration procedure between the parties to resolve an “alleged improper practice” challenged

PERB’s policy of initially deferring to a contract arbitration procedure between the parties to resolve an “alleged improper practice” challenged

Westchester County Dept. of Pub. Safety Police Benevolent Assn., Inc. v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 07178, Appellate Division, Third Department

The New York State Public Employment Relations Board’s [PERB] “deferral policy” in cases alleging "improper practices" was challenged by Westchester County. The County contended that the policy constituted “an abandonment of the exclusive, nondelegable jurisdiction over improper practice charges granted to PERB by Civil Service Law §205(5)(d).”

Essentially, PERB’s policy utilized an agreed-upon binding arbitration procedure set out in a collective bargaining agreement between the parties to resolve a “claimed improper practice” before it would consider the allegation.

The union had filed an improper practice charge with PERB alleging that the County had refused to negotiate an issue concerning the "maintenance of standards" clause in the governing collective bargaining agreement in violation of Civil Service Law §209-a(1)(d).

When PERB applied its deferral policy and conditionally dismissed the charge pending the outcome of binding arbitration conducted pursuant to the negotiated grievance procedure over Westchester's objections, Westchester filed a petition in Supreme Court appealing its ruling.

Supreme Court dismissed the County’s petition, agreeing with PERB that the charge raised an issue covered by the CBA and thus provided a reasonable basis for PERB to apply its policy of deferring the matter to binding arbitration. The Appellate Division agreed, noting that PERB had earlier ruled on this issue, which decision was affirmed in Matter of Westchester County Police Officer's Benevolent Assn. v Public Empl. Relations Bd., 301 AD2d 850. This, said the Appellate Division, gave the union “a reasonably arguable right to submit the conduct alleged in the improper practice charge to binding arbitration.”

The Appellate Division, in sustaining the lower court’s ruling and dismissed the County’s appeal, explained:

1. The application of the policy resulted in a conditional dismissal, meaning that the improper practice charge remains subject to being reopened before PERB after the conclusion of the arbitration process; and

2. The courts have generally deferred to PERB's interpretation of its jurisdiction under Civil Service Law §205(5)(d), citing Matter of Roma v Ruffo, 92 NY2d 489.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07178.htm

Employee served with disciplinary charges alleging he was intoxicated at work

Employee served with disciplinary charges alleging he was intoxicated at work

Human Resources Administration v Grimes, OATH Index #1985/12   

OATH Administrative Law Judge Kevin F. Casey sustained charges that alleged that an employee was intoxicated at work.

Coworkers noticed the individual looked disheveled and was laughing and crying to himself at his desk, in marked contrast to his usual demeanor. "911" was called and the employee was taken to a hospital by the first responders.

Noting that the Emergency Medical Technician's records indicated that the first responders had made a presumptive diagnosis that employee was intoxicated based on his unsteady gait, slurred speech, and the odor of alcohol on his breath, Judge Casey found the individual’s claims to the contrary to be vague and unsupported.

The ALJ recommended that the appointing authority impose a penalty of a 20-day suspension without pay

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1985.pdf

A two prong test is applied in determining if a public official is entitled to "qualfied immunity" when he or she is sued

A two prong test is applied in determining if a public official is entitled to "qualfied immunity" when he or she is sued
Coollick v. Hughes, USCA, 2nd Circuit, 10-5248-cv

The US Circuit Court of Appeals ruled that the Superintendent of the Connecticut Technical High School System was entitled to qualified immunity in a §1983 action in which she was alleged to have deprived the plaintiff of “sufficient notice” before the elimination of her position as a guidance coordinator at a high school.

The Circuit Court of Appeals ruled that in this instance the Superintendent’s conduct, “even when viewed in the light most favorable to [the plaintiff], did not violate the plaintiff’s clearly established rights."

The court explained that “Qualified immunity protects federal and state officials from money damages and 'unnecessary and burdensome discovery or trial proceedings.'” It, however, is an affirmative defense and the federal or state officials being sued “have the burden of raising in their answer and establishing at trial or on a motion for summary judgment.”

In determining if an official is entitled to a claimed right to “qualified immunity” the courts apply the two-prong test set out in Pearson v. Callahan, 129 S. Ct. 808.

The first prong addresses the question of whether the petitioner “stated a cause of action.”

The second prong of the test asks did the “[g]overnment official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he [or she] is doing violates that right.”

In this instance the Circuit Court concluded that the Superintendent’s action “were not objectively unreasonable in light of the law that existed at the time of her conduct.”

Further, the Second Circuit said that it has held that when a plaintiff is subject to a collective bargaining agreement that provides adequate post-deprivation procedures, “such post-deprivation procedures . . . are sufficient to satisfy due process” citing Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206

The plaintiff , said the court, “utilized the grievance procedures provided for in the collective bargaining agreement and received a favorable decision" restoring her to the status she had prior to the Superintendent’s actions and awarding her back pay and benefits.*

In any event, the court held that there was nothing “objectively illegal, in a constitutional sense,” in the Superintendent’s action and although she may have been incorrect in deciding that the plaintiff did not have certain rights under the collective bargaining agreement, the plaintiff was able to avoid any harm through the very grievance procedures in place to remedy any such deprivation.

Deciding that there was no constitutional bright lines transgressed by the Superintendent in the course of her handling the plaintiff’s termination, the Circuit Court ruled that the Superintendent was entitled to qualified immunity.

* The Circuit Court observed notwithstanding her prevailing in the grievance she filed, the plaintiff “persists with this lawsuit for additional recovery of punitive damages and reimbursement of attorneys’ fees and costs.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/f1968e72-dc4f-4691-a240-38fa0d574732/5/doc/10-5248_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f1968e72-dc4f-4691-a240-38fa0d574732/5/hilite/

Firefighter’s injury suffered at the World Trade Center after 9/11 ruled the result of a personal activity rather than the performance of official duties

Firefighter’s injury suffered at the World Trade Center after 9/11 ruled the result of a personal activity rather than the performance of official duties
Cavanaugh v DiNapoli, 2012 NY Slip Op 07177, Appellate Division, Third Department

A firefighter for the City of Syracuse filed an application for accidental disability retirement benefits following an injury he suffered at the World Trade Center [WTC] in the aftermath of 9/11.

The Comptroller denied the application on the grounds that the firefighter had not established he was performing duties in his official capacity at the time he was working at the WTC.

The firefighter appealed the Comptroller’s determination contending that it was not his burden to establish that he was working in his official capacity as a firefighter at the time of his injury because the rebuttable presumption set forth in Retirement and Social Security Law §363(g)(2)(a) placed that burden upon the New York State and Local Retirement System.

The Appellate Division never reached that issue as it found that there was substantial evidence that firefighter presence at the WTC following 9/11 was a “personal pursuit” rather than part of his job as a Syracuse firefighter.

According to the decision, the record showed that the firefighter had been granted a leave of absence from his position to go to the WTC and was considered to be on vacation during the time he was there. Thus, said the court, the firefighter was not working in an official capacity when the 9/11 attacks occurred and he went to the WTC the next day at the invitation of a friend who owned a private ambulance service.

The bottom line: Although the firefighter had the approval of his fire chief to go to the WTC and took his firefighting gear with him, the Appellate Division said that there was substantial evidence supports the Retirement System’s finding that he was engaged in a personal activity and not performing or discharging his official duties as a Syracuse firefighter while at the WTC site.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07177.htm

A breach of contract complaint fails as a matter of law in the absence of any showing that a specific provision of the contract was breached

A breach of contract complaint fails as a matter of law in the absence of any showing that a specific provision of the contract was breached

Westchester County Corr. Officers Benevolent Assn., Inc. v County of Westchester, 2012 NY Slip Op 07106 {See, also, 2012 NY Slip Op 07107 decided herewith], Appellate Division, Second Department

The Westchester County Correction Officers Benevolent Association, Inc., and individually named retired correction officers, commenced this action to recover damages for an alleged breach of contract based on Westchester County’s' failure to pay the individual plaintiffs benefits equivalent to those provided by the Worker's Compensation Law for loss of earning capacity due to permanent partial disability.

The Association argued that any correction officer who has been receiving disability benefits pursuant to General Municipal Law §207-c and who then receives a disability retirement pension upon the County of Westchester's application* for such retirement on the behalf of the individual is entitled, upon retirement, to benefits equivalent to those provided by the Workers' Compensation Law for loss of earning capacity due to permanent partial disability.

Westchester, on the other hand, contended that the parties' intention at the time that the collective bargaining agreement (the CBA) was negotiated was to assure that the correction officers were afforded all of their rights under the Workers' Compensation Law.

The Associating had admitted that the CBA "is silent as to awards for permanent partial disability." Accordingly, argued the County, as the CBA is silent as to such awards, the correction officers were not entitled, upon retirement, to Workers' Compensation awards for permanent partial disability.

The Appellate Division pointed out that "A breach of contract cause of action fails as a matter of law in the absence of any showing that a specific provision of the contract was breached."

Here, the Association failed to identify a specific provision in the CBA that requires the County to pay benefits equivalent to those paid pursuant to the Workers' Compensation Law for loss of earning capacity due to permanent partial disability. Accordingly, ruled the court, the Association failed to establish its prima facie entitlement to judgment as a matter of law.

The Appellate Division explained that "[W]hen the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties' reasonable expectations. Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms."

Further, said the court, "[i]nterpretation of an unambiguous contract provision is a function for the court, and matters extrinsic to the agreement may not be considered when the intent of the parties can be gleaned from the face of the instrument. A court should not imply a term which the parties themselves failed to include."

Finding that the specific provisions of the CBA did not provide for the retirement benefits sought by the Association, the Appellate Division held that the Association’s “reliance upon generalized language in the CBA is unavailing.”

* §207-c.2 of the General Municipal Law, in pertinent part, provides that the “Payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to any policeman who is permanently disabled as a result of an injury or sickness incurred or resulting from the performance of his [or her] duties if such policeman is granted an accidental disability retirement allowance …If application for such retirement allowance or pension is not made by such policeman, application therefor may be made by the head of the police force or as otherwise provided by the chief executive officer or local legislative body of the municipality by which such policeman is employed. [Emphasis supplied.]

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07106.htm