Limiting the pool of eligibles for a promotion examination to enhance the chances of provisional employees for permanent appointment violates Article VI, §6, of the State Constitution

Limiting the pool of eligibles for a promotion examination to enhance the chances of provisional employees for permanent appointment violates Article VI, §6, of the State Constitution

Ulster County Sheriff's Employees Assn., CWA Local 1105 (Ulster County Sheriff's Dept.), 2012 NY Slip Op 08213, Appellate Division, Third Department

This appeal flows from Supreme Court’s granting the Ulster County Sheriff’s Employees Association’s  CPLR 7510 petition seeking to confirm an arbitration award.

The Association, in response to Ulster County’s changing the minimum qualifications for eligibility for the promotion examination to Assistant Warden by excluding correction sergeants* as eligible employees for the examination, had filed a contract grievance contending that this change by the county personnel officer violated the parties' collective bargaining agreement [CBA]. 

Ultimately the grievance was submitted to arbitration.

The question presented to the arbitrator: "Did the County violate the preamble and/or Article 5 of the CBA when it excluded [those serving in the] title of correction sergeant from being eligible to take the 2009 exam for Assistant Warden? If so, what shall be the remedy?"

The arbitrator found that the County violated the CBA “when it excluded correction sergeants from the eligible list” and, as the remedy,  

[1] Directed that the results of the 2009 exam be annulled;** and

[2] Directed that a new exam be given for which "correction sergeants with 36 months of permanent competitive class status would be eligible."

In sustaining the Supreme Court's confirming the arbitrator’s award, the Appellate Division applied the following guidelines:

1. In circumstances when the parties agree to submit their dispute to an arbitrator, courts generally play a limited role;

2. An arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator and the courts should not assume the role of overseers to mold the award to conform to their sense of justice; and.

3. A court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The court rejected the County’s argument that the arbitrator's award violated public policy and that it conflicted with the Civil Service Law because it “unduly interferes with the authority of the County's personnel officer to establish minimum qualifications for positions in the Sheriff's Department.”

The Appellate Division explained that an arbitration award may only be vacated on public policy grounds [1] "where a court can conclude, without engaging in any extended factfinding or legal analysis, that a law prohibits, in an absolute sense, the particular matters to be decided, or [2] that the award itself violates a well-defined constitutional, statutory or common law of this State" and [3] "judicial restraint under the public policy exception is particularly appropriate where, as here, the case involves arbitration pursuant to a collective bargaining agreement."

Noting that the County's personnel officer had the authority to establish minimum qualifications for promotion to job titles in county government, the Appellate Division said that it did not follow that such determinations are immune from oversight or review.

In this instance, said the court, the arbitrator determined that the change was made to increase the chances that two correction lieutenants who had been provisionally appointed as assistant wardens would ultimately receive permanent appointments to that position.

The court said the it agreed with the arbitrator’s conclusion that "[t]he decision to eliminate [c]orrection [s]ergeants from the pool of candidates [was] solely to increase the odds of the provisional candidates [being appointed permanently to the position] runs afoul of the competitive process envisioned by the Civil Service Law" and violated the State's constitutional provision requiring that civil service positions be filled "according to merit and fitness," citing Article V, §6, of the State Constitution.

* This change resulted in limiting eligibility for the promotion examination to correction lieutenants having at least 12 months of permanent service in the title.

** Presumably this directive resulted in the vacating of all permanent appointments made from the eligible list resulting from the 2009 examination for Assistant Warden.

  

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08213.htm

NYPPL summaries most often read during the month of November 2012

NYPPL summaries most often read during the month of November 2012

The following were the five case summaries most often read by the 16,138 visitors to this LawBlog during the month of November 2012.

The legal distinction between domicile and residence at:

http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html

Essentials of the "Pickering Balancing Test” at:

http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member at:

http://publicpersonnellaw.blogspot.com/2011/04/school-board-member-seeking-removal-of.html

Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law at:

http://publicpersonnellaw.blogspot.com/2011/04/ordering-correction-officer-to-submit.html

and

Court finds Pension Board's failure discontinue the payment of disability retirement benefits obviates the “suspension” of the retiree’s benefits at:

http://publicpersonnellaw.blogspot.com/2011/04/court-finds-pension-board-failure.html

From the Office of the State Comptroller

From the Office of the State Comptroller

For the week of November 26 - December 2, 2012 

Unclaimed funds for New Yorkers in areas hard–hit by Superstorm Sandy

“Nearly $3 billion in unclaimed funds are waiting to be returned to New Yorkers who reside in areas devastated by Superstorm Sandy. I would like to return the money to the rightful owners,” New York State Comptroller Thomas P. DiNapoli said.

“In these difficult times we are seeing more than ever that every single dollar counts. I encourage New Yorkers who have been impacted by the recent storm to initiate the simple process of retrieving their unclaimed funds as they continue to rebuild.”

N.B. You can search for unclaimed funds being held in the Comptroller’s “Unclaimed Property Fund” by clicking on: https://ouf.osc.state.ny.us/ouf/

DiNapoli: Town of Hempstead Should Examine Animal Shelter Costs

Auditors found high operational costs at the Hempstead Animal Shelter among other problems, State Comptroller Thomas P. DiNapoli said Friday. The auditwas undertaken after requests by town residents and Nassau County District Attorney Kathleen Rice.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the audits of:

the Town of Butler;

the Town of Caneadea;

the East Islip Fire District;

the Town of Gates;

the Town of Jay;

he Town of Mamakating;

the City of Newburgh;

he North Bay Fire District;

the Village of Otisville; and,

the Town of Vienna.

Recent rulings and recommendations by OATH Administrative Law Judges

Recent rulings and recommendations by OATH Administrative Law Judges

Summaries published by the NYC Office of Administrative Tribunals and Hearings

Employee alleged to have refused to work overtime
OATH Index No 1748/12

A hospital special officer was charged with insubordination after refusing to work mandatory overtime on 42 occasions. The employee did not appear at the hearing and the matter proceeded by inquest.*

Administrative Law Judge Kara J. Miller found that on each occasion the officer was given a form ordering him to work mandatory overtime and warning him that non-compliance could result in disciplinary action.  Each form was signed and dated by special officer and a supervisor. 

ALJ Miller found that this documentation proved the insubordination.  She recommended that the special officer be suspended without pay for 45 days.

* Courts have held that the appointing authority or its designee may proceed with the disciplinary action even though the employee is not present. Where the individual is to be  tried in absentia, a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did appear at the appointed time and place. Notwithstanding the absence of the individual, the burden is on the charging party to present and prove the disciplinary charges filed against the worker.

The decision is posted at Health & Hospitals Corp. (Jacobi Hospital Ctr.) v. Cooper (in PDF), .

Supervisor charged with leave violations, failure to supervise subordinates, sleeping on duty and misuse of agency property.
OATH Index No. 760/12 

Following a 7-day hearing, ALJ Kevin F. Casey sustained some of the leave violations, the sleeping on duty charge and the misuse of property charge, but he dismissed the failure to supervise charges. 

Noting that it was undisputed that some of supervior’s absences may have been due to medical conditions that he developed after his service at Ground Zero, and that the most serious disciplinary penalty previously imposed on employee was the loss of 10 vacation days, Judge Casey found termination of employment to be an overly harsh penalty and recommended a 48-day suspension without pay, based on principles of progressive discipline. 

The decision is posted on the Internet at Dep’t of Sanitation v. Harris (in PDF),  

Employees alleged to have ignored directives to stop distributing union literature while not on duty
OATH Index Nos. 1497/12, 1499/12, 1707/12

Three New York City correction officers were charged with a number of allegations of misconduct, chief among them refusing to comply with orders to stop distributing union literature on Rikers Island while not on duty and refusing to obey orders to leave the secured island.

The individuals denied they were ever given such orders and asserted a First Amendment right to distribute union information while off-duty. They also offered videos of some of the incidents into evidence.

ALJ Alessandra F. Zorgniotti sustained the charges that correction officers refused to obey orders to stop distributing their materials and orders to leave the island, as well as charges that one officer filed a false report and another failed to turn over his parking pass promptly.

Other allegations were dismissed.

ALJ Zorgniotti noted that a correctional facility presents special circumstances under the First Amendment, and that the employees had failed to prove that their First Amendment rights outweighed the compelling interest of the Department in maintaining a secure facility. 

Judge Zorgniotti recommended that each officer be suspended for 10 days without pay. 

The decision is posted on the Internet at Dep’t of Correction v. Reuter (in PDF), OATH Index Nos. 1497/12, 1499/12, 1707/12

Motor vehicle operator alleged mentally unfit to perform her dutie
OATH Index No. 1546/12  

Administrative Law Judge John B. Spooner found that the individual had a mental disability but that the proof presented at the hearing was insufficient to sustain the allegation that she was presently unfit for her job as a driver.

The ALJ noted that [1] neither of the two incidents proven at trial established that employee was an unfit driver, [2] the individual had recently received favorable evaluations of her driving performance, and[3]  there had been no complaints about the employee since January 2011.

Judge Spooner recommended that the disciplinary charges be dismissed.

The decision is posted on the Internet at  Admin. for Children’s Services v. Anonymous(in PDF),

Newspaper reports admitted into evidence in an administrative disciplinary proceeding

Newspaper reports admitted into evidence in an administrative disciplinary proceeding
2012 NY Slip Op 07479, Appellate Division, Fourth Department

A volunteer firefighter filed an Article 78 petition challenging the Volunteer Fire Company’s decision,  to expel him from membership in the Fire Company following a hearing held pursuant to General Municipal Law §207-l.

The petitioner contended that the Fire Company had violated §160.50 of the Criminal Procedure Law, which provides for the “sealing” of certain record, when the Company admitted into evidence media reports related to the petitioner's arrests or when it presented the testimony of a police investigator who was involved in the relevant criminal investigations.

As to newspaper media reports concerning petitioner's arrests, the Appellate Division, citing New York State Dept. of Mental Hygiene v State Div. of Human Rights, 103 AD2d 546, 549, affd 66 NY2d 752, said that such newspaper reports are not "official records and papers . . . relating to [the petitioner's] arrest or prosecution" within the meaning of CPL §160.50(1)(c). Further, said the court, it is " permissible to consider the independent evidence of the conduct [of the petitioner] leading to the criminal charges."

As to the testimony of the police investigator, the court explained that the police investigator was "free to testify from memory" concerning the conduct that led to the petitioner's arrests.”

The Appellate Division then stated there was substantial evidence establishing that the petitioner had exhibited a lack of "good moral character" in violation of Article II, §2 of the Fire Company's Constitution and By-laws and had committed misconduct under General Municipal Law §209-l".

N.B. §209-l provides for the removal of volunteer officers and volunteer members of fire departments charged with, and found guilty of, misconduct or incompetence after a hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07479.htm