Apply the public policy exception in considering confirming an arbitration award in situations where the alleged misconduct might constitute a felony

Apply the public policy exception in considering confirming an arbitration award in situations where the alleged misconduct might constitute a felony

United Univ. Professions v State of New York, 2013 NY Slip Op 50084(U), Supreme Court, Albany County

A faculty member in the collective bargaining unit represented by United University Professions (UUP) employed by a unit of the State University of New York [SUNY] was suspended without pay pending the resolution of certain charges of misconduct filed against him. The arbitrator determined that the faculty member was guilty of some, but not all, of the charges. 

Under the circumstances, the arbitrator decided that suspension rather than dismissal was the appropriate penalty to be imposed and directed that the faculty member be reinstated to his former position.*

When SUNY failed to reinstate the faculty member, UUP filed a petition in Supreme Court pursuant to CPLR Article 75 seeking to confirm the Arbitration Award. SUNY cross moved to dismiss the petition and vacate the Award.

Supreme Court, noting that a court may vacate an arbitration award only upon one of the grounds set forth in CPLR 7511(b)[1], said that in support of its motion do vacate the award SUNY contended that the arbitrator exceeded her power. 

This ground, said the court, may be invoked "where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

SUNY had argued that the arbitrator "exceeded [her] power" because her decision to suspend rather than dismiss the faculty member violated a "strong public policy." In support of its contention that the award violates public policy SUNY cited Penal Law Article 155, noting that the arbitrator had determined that the faculty member committed certain acts that "fit the definition" of larceny and "at the dollar level involved ($78,600.00 or $149,994.00) it would constitute Grand Larceny in the 2nd Degree a Class C Felony..."

Supreme Court said that the arbitrator determined that the faculty member had “inappropriately used the State's facilities and resources for the benefit of his private entity, assigned State employees to perform services for the private entity, and inappropriately directed employees to charge costs related to the private entity to a State grant contract” and other offences. The court, however, decided that SUNY had not demonstrated that the public policy exception applied here, noting that the faculty member was neither charged criminally nor adjudged to be guilty of any crime.

Finding that the arbitrator's determination to suspend the faculty member did not violate any express statute, rule or regulation prohibiting reinstatement under similar circumstances, the Court said that it was unable to conclude that the Award is "prohibit[ed], in an absolute sense." Further, the court said before deciding that the faculty member should be returned to work, the arbitrator considered certain mitigating factors, including [1] the faculty member did not intend to profit personally from his conduct and [2] that the arbitrator apparently concluded that the faculty member believed that his work  would benefit SUNY and provide financial support for his work on behalf of the University.

Another aspect of the case: concerned the arbitrator’s refusal to consider certain e-mails was sent and received via the faculty member’s personal e-mail account and extracted from a State-owned laptop computer.

Supreme Court ruled that SUNY had failed to demonstrate that the requested documents were pertinent and material to the issues presented, explaining that “It is well settled that ‘[a]n arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be,’" citing Perilli v NYS Dept. of Correctional Services, 80 AD3d 617.

The court said that the arbitrator, “after considering all the evidence, such as counsels' characterizations as to the content of the documents and testimony from the State's witness that his opinion with regard to [the faculty member’s] intent was not based solely on the content of the e-mail, declined to accept the documents. SUNY had not established any basis to question the arbitrator's judgment and the record before the Court did not support SUNY's view that her determination constituted misconduct.

Supreme Court granted UUP’s petition to confirm the arbitrator’s award in its entirely.

* The arbitrator determined (1) that SUNY had just cause to immediately suspend the faculty member pending resolution of the disciplinary charges; (2) that the faculty member was guilty of thirty of the alleged acts of misconduct; (3) that the faculty member was not guilty of the 23 remaining alleged acts of misconduct; (4) that the penalty of termination was "not appropriate under the totality of circumstances"; and (5) that the appropriate penalty was suspension from the effective date of his termination to the date of the award

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_50084.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of January 14 – 20, 2013 [Click on the caption to access the full report]

DiNapoli: $265 Million In Hurricane Relief Contracts and Payments Expedited in 2012

The State Comptroller’s office processed nearly $265 million in contracts and spending in November and December 2012 related to Hurricane Sandy recovery and has posted the details online so the public can access it in real time, Comptroller Thomas P. DiNapoli reported Wednesday.

DiNapoli: Slow Growth In Aid To New York’s Local Governments Over Last Decade

Local governments across New York are increasingly turning to local tax revenue to make up for sluggish growth in federal and state aid, according to a report issued Wednesday by State Comptroller Thomas P. DiNapoli. The report is the latest in a series of reports DiNapoli will issue to highlight the causes of fiscal stress in New York’s local governments.

DiNapoli: SUNY Downstate Medical Center Faces Insolvency

The State University of New York Downstate Medical Center, which includes the University Hospital of Brooklyn, faces insolvency as early as May if immediate actions are not taken, according to an audit assessing the hospital’s financial condition released Thursday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Freezes Pension Fund Investments in Commercial Firearm Manufacturers

New York State Comptroller Thomas P. DiNapoli announced Tuesday that the New York State Common Retirement Fund will freeze its investments in publicly–traded commercial firearm manufacturers.

DiNapoli: KeyCorp Agrees To Disclose Political Spending

KeyCorp has agreed to disclose all of its corporate political spending, lobbying and employee–sponsored political contributions in a comprehensive agreement announced Wednesday by New York State Comptroller Thomas P. DiNapoli on behalf of the New York State Common Retirement Fund.

Comptroller DiNapoli Releases Municipal Audits

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

the Town of Cortlandville;

the Town of Dresden;

the Eagle–Matt Lee Fire Company #1, Inc.;

the Town of Mount Morris;

the Town of Parma;

the Town of Rensselaerville;

the Village of Scotia; and,

the Union Fire Company #2, Inc.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed an audit of

the Poughkeepsie City School District.

The 2013 edition of The Discipline Book, incorporating summaries of relevant decisions issued through December 31, 2012, is now available

The 2013 edition of The Discipline Book, incorporating summaries of relevant decisions issued through December 31, 2012, is now available

The Discipline Book is a 2100+ page electronic handbook for administrators, union officials and attorneys involved in disciplinary actions taken against public officers and employees employed by New York State and its political subdivisions under the State's Civil Service Law, the Education Law and disciplinary grievance procedures negotiated pursuant to the Taylor Law.

Reviewing The Discipline Book, Mitchell H. Rubinstein, Adjunct Professor, St. John's University, said:

"... I have reviewed previous editions of this work and it is now bigger and better than ever.  It now spans 2127 pages and it covers just about everything; and I mean everything. 

"What is particularly valuable about this book is that it concentrates on recent case law. Hundreds of recent cases as well as hundreds of the leading cases are discussed. The book provides practical advice and information in an easy to understand format. Quite simply, there is no other book which you could purchase involving New York law which provides timely, practical and exhaustive analysis of discipline, constitutional issues involving discipline such as the First Amendment, evidentiary issues, procedural issues, collective bargaining issues, and union issues. 

"Any administrator, employer, union, or attorney who is involved in public sector labor management relations in New York will want to purchase at least one copy. As in earlier editions, the book is published as an e-book which makes searching via MS Word easy and fast."

To order your copy of the 2013 edition of The Discipline Book, please go to: http://booklocker.com/books/5215.html

New Jersey appellate court upholds district’s removal of teacher who posted derogatory remarks about her students on Facebook

New Jersey appellate court upholds district’s removal of teacher who posted derogatory remarks about her students on Facebook

Source:NSBA Legal Clips; Free subscriptions available at www.nsba.org/legalclips. Reproduced with permission. Copyright © 2013, National School Boards Association. All rights reserved.

In re Tenure Hearing of Jennifer O’Brien,  No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013)

Abstract: A two-judge panel of the Appellate Division of the New Jersey Superior Court has ruled that school district officials were justified in terminating an elementary school teacher for posting derogatory remarks on Facebook about her students, including referring to them as “future criminals.” Agreeing with the administrative law judge (ALJ) and the Acting Commissioner of Education, the panel concluded the teacher’s remarks were not protected by the U.S. Constitution’s First Amendment Free Speech Clause because the remarks were not made on a matter of public concern.

The panel also found evidence supporting the ALJ’s and Commissioner’s determination that the teacher had engaged in conduct unbecoming a tenured teacher. Finally, the panel agreed with the ALJ and Commissioner that her termination was the appropriate penalty.

Facts/Issues: At the time of her termination, Jennifer O’Brien was employed by the School District of the City of Paterson (PCSD) as a first grade teacher. In March 2011, she posted two statements on Facebook that had cast her students in a derogatory light, including referring to them as “future criminals.” The remarks gained widespread public attention, with a number of parents complaining about O’Brien’s comments.

After PCSD’s Deputy Superintendent filed charges against O’Brien for conduct unbecoming a teacher, PCSD’s Superintendent found probable cause to support the charges and O’Brien’s termination. The charges were then filed with the Acting Commissioner of Education, who referred the matter to the Office of Administrative Law for a hearing before an ALJ.

The ALJ rejected O’Brien’s argument that her remarks were entitled to First Amendment protection on grounds that she had addressed a matter of public concern, i.e., student misconduct. Instead, the ALJ found the remarks were “a personal expression” of dissatisfaction with her job. The ALJ also concluded that even if O’Brien’s speech was on a matter of public concern, her right to express her views was outweighed by PCSD’s need to operate its schools efficiently. The ALJ stated that “in a public school setting thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools.”

The ALJ also found the evidence supported the charges of conduct unbecoming a teacher because it showed O’Brien failed to maintain a safe, caring, nurturing, educational environment. Additionally, the ALJ determined that O’Brien breached her duty as a professional teacher. Lastly, the ALJ found O’Brien’s conduct justified her removal because O’Brien’s relationship with the Paterson school community had been irreparably damaged. The Acting Commissioner adopted the ALJ’s ruling.

O’Brien appealed that decision, raising three arguments: (1) the ALJ and the Commissioner erred by rejecting her constitutional claim; (2) the tenure charges were not supported by the evidence and should have been dismissed; (3) her removal was not the appropriate penalty.

Ruling/Rationale:  The Appellate Division panel rejected all of O’Brien’s arguments, finding them without merit, and affirmed the ALJ’s and Commissioner’s decisions. The panel concluded that O’Brien’s remarks did not constitute protected speech because they were personal statements motivated by her dissatisfaction with her job and the behavior of some her students. The panel also agreed that even if the remarks were on a matter of public concern, PCSD’s interest in the efficient operation of its schools outweighed her right to free speech.

The panel also found that the evidence supported the ALJ’s determination that O’Brien had engaged in conduct unbecoming a tenured teacher. It pointed out that both the ALJ and the Commissioner found that by posting the comments, O’Brien had demonstrated a lack of control “inimical to her role as a professional educator.”

Finally, the panel rejected the argument that O’Brien’s termination was not an appropriate penalty. It stated: “We are satisfied that, in determining the appropriate penalty, the ALJ and Acting Commissioner considered all relevant factors and reasonably concluded that the seriousness of O’Brien’s conduct warranted her removal from her tenured position in the district.”

In re Tenure Hearing of Jennifer O’Brien,  No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013)

[NSBA’s Editor's Note: In November 2011, Legal Clips summarized an article in The Record, which reported on ALJ Ellen Bass' ruling. "O'Brien has demonstrated a complete lack of sensitivity to the world in which her students live,” Bass said. “The sentiment that a 6-year-old will not rise above the criminal element that surrounds him cuts right to the bone.” Bass also noted that O’Brien had failed to express genuine remorse during her August 2011 hearing. “I came away with the impression that O’Brien remained somewhat befuddled by the commotion she had created,” the judge wrote.]

Administrative agency’s failure to follow its own precedents in adjudicating the issue results in court remanding the matter to it for its further consideration

Administrative agency’s failure to follow its own precedents in adjudicating the issue results in court remanding the matter to it for its further consideration
City of New Rochelle v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 08860, Appellate Division, Third Department

The City of New Rochelle and the Police Association of New Rochelle[PBA] entered into a stipulation of settlement to resolve the improper practice charge that the PBA had filed with PERB concerning “special duty details.” The stipulation set out the terms and conditions resolving the improper practice charge and included a provision that such "[a]greement and its subject matter [would] not be subject to the grievance and/or arbitration procedures contained in [the] collective bargaining agreement between [the City] and the [PBA], it would] be enforceable in a court of competent jurisdiction."

When the City entered into a written agreement with the New Rochelle Superior Officers' Association [SOA] allowing sergeants and lieutenants to work special duty details, the PBA, claiming that special duty details had previously been performed exclusively by its members, filed another improper practice charge with PERB.

The City, contending that the improper practice charge had its genesis in a contractual dispute earlier resolved with the stipulation between the City and the PBA, argued that PERB lacked subject matter jurisdiction.

A PERB Administrative Law Judge found that PERB did have jurisdiction over the underlying charge and, further, that the City had engaged in an improper practice when it unilaterally transferred exclusive bargaining unit work to nonunit employees. PERB affirmed the ALJ's decision and the City file initiated a CPLR Article 78 action challenging PERB’s determination.

The Appellate Division, noting that the City, as a public employer, is required to negotiate in good faith with the PBA regarding the terms and conditions of its members' employment said that Civil Service Law §205(5)(d) “makes clear that PERB ‘shall not have authority to enforce an agreement between an employer and an employee organization and shall not exercise jurisdiction over an alleged violation of such an agreement that would not otherwise constitute an improper employer or employee organization practice,’ and an ‘agreement,’ for purposes of the statute, includes collective bargaining agreements.”

Further, said the court, “PERB "has consistently interpreted [Civil Service Law §205 (5)(d)] to deprive it of jurisdiction over failure-to-negotiate improper practice charges when the underlying disputes are essentially contractual, in favor of resolving the dispute through the parties' grievance-arbitration machinery, or resort to the courts."

PERB, however, had rejected the City’s jurisdictional defense based on its earlier stipulation of settlement with the PBA, holding that while the stipulation addressed the issue of eligibility for special duty details did not expressly speak to the issue of the exclusivity of such assignments being vested in PBA unit members.

The Appellate Division disagreed, holding that PERB's own prior decisions make it clear that "[a] jurisdictional issue can be raised . . . even if the agreement [at issue] does not address specifically the particular allegations of the improper practice charge if the agreement is a source of right to the charging party with respect to the subject matter of the charge."

Accordingly, said the court, it was satisfied that the stipulation of settlement provides "a reasonably arguable source of right with respect to the subject matter of the [underlying improper practice] charge" -- even in the absence of an express reference to the issue of exclusivity and thus "PERB erred in summarily dismissing the City's jurisdictional defense and reaching the merits of the dispute."

The Appellate Division annulled PERB’s determination and remitted the matter to it for its consideration of whether the improper practice charged should be summarily dismissed at this juncture or, alternatively, conditionally dismissed pending judicial resolution of the underlying contractual dispute.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08860.htm