Where there is broad arbitration clause in the collective bargaining agreement, the arbitrator rather than the court is to determine if the subject of the dispute is arbitrable

Where there is broad arbitration clause in the collective bargaining agreement, the arbitrator rather than the court is to determine if the subject of the dispute is arbitrable

Ontario County v County Sheriff's Unit 7850-01, CSEA, Local 1000, AFSCME, AFL-CIO), 2013 NY Slip Op 03204, Appellate Division, Fourth Department

The Collective Bargaining Agreement [CBA] between Ontario County and the Ontario County Sheriff's Unit 7850-01 provided that disputes over the meaning or application of the CBA were initially required to be submitted through the contract's grievance process. In the event the employee was "not satisfied" with the result obtained through that process, the Unit could submit the matter to arbitration .

The Ontario County Sheriff's Unit 7850-01 [Unit] filed grievances on behalf of two correction officers whose request for a shift exchange was denied. Contending that the denial "[v]iolated or [i]nvolved" the clause in the CBA that addressed "time exchanged between employees," the Unit informed County of its intent to seek arbitration. 

The County thereupon filed a petition in Supreme Court pursuant to CPLR Article 75 to stay arbitration and the Unit "cross-moved" to compel arbitration.

Supreme Court denied the County’s petition and granted the Unit’s cross motion.

The Appellate Division affirmed the Supreme Court’s ruling, noting that “A grievance may be submitted to arbitration only where the parties agree to arbitrate that kind of dispute, and where it is lawful for them to do so." In this instance,” said the court, “the parties do not challenge the lawfulness of arbitrating the instant dispute and, instead, [the County contends] that there is no valid agreement to arbitrate the grievances at issue inasmuch as the CBA did not contemplate shift exchanges."

The Appellate Division rejected the County’s argument, explaining that in determining whether the parties agreed to arbitrate the dispute at issue a court’s review “is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom"

In this instance, said the court, there is “a broad arbitration clause and a reasonable relationship between the subject matter of the dispute and the general subject matter of the parties.” Accordingly, the court decided that the was arbitrable and it was left to the arbitrator to make “a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03204.htm

Governor Cuomo's financial restructuring proposal to assist distressed local governments

Governor Cuomo's financial restructuring proposal to assist distressed local governments

On May 14, 2013, Governor Andrew M. Cuomo issued a proposal to create a Financial Restructuring Board to help distressed local governments manage their finances. The proposal includes an alternative binding arbitration process that municipalities and unions could voluntarily opt for to resolve contract issues in an expedited procedure.

In the words of the Governor: "Growing retirement costs, declining populations, decreasing property values, and the recent fiscal crisis have all contributed to the difficult financial issues facing localities today …The Financial Restructuring Board will bring together state and local officials to help localities make tough decisions and solve this crisis now instead of kicking the can down the road."

More money is not the solution to help local governments solve their fiscal issues said the Governor. “The State's existing Aid and Incentives for Municipalities (AIM) program does not reflect local government need or performance, and already constitutes a large percentage of the budgets of New York's largest cities (outside of NYC)”

The proposal to help fiscally distressed municipalities includes the following elements:

Financial Restructuring Board: The Board would include the State Budget Director, Secretary of State, Attorney General, Comptroller, and one private sector restructuring professional. The Budget Director would establish standards to determine which local governments qualify as fiscally distressed. Fiscally distressed local governments would be able to request the assistance of the Board, and work together to identify a specific restructuring plan.

Implementing Restructuring Plan: The 2013-14 Budget includes up to $80 million to assist local governments with reorganization plans. Recommendations of the Board would be binding upon any municipality that accepts funding. The Board may require development of multi-year financial plans, functional consolidation, mergers, shared services, fewer elected officials, and other measures.

The Board would also serve as a binding arbitration panel: The Board would provide an alternative to the binding arbitration process for police, fire, or deputy sheriff unions if municipalities and unions agree. The Board would render an arbitration ruling within 9 months.

Employee terminated following a disciplinary hearing after receiving counseling memoranda regarding serious and specific deficiencies in her job performance

Employee terminated following a disciplinary hearing after receiving counseling memoranda regarding serious and specific deficiencies in her job performance

Kuznia v Adams, 2013 NY Slip Op 03369, Appellate Division, Third Department

An individual [Petitioner] commenced her employment with the County Probation Department in 1979 and in 2004 was named as the Department's deputy director. When the Department’s director retired, Petitioner “effectively was in charge of the Department” until a new director was named in August 2010.

Although prior to serving as the Department's deputy director Petitioner had consistently received positive performance evaluations,* in March 2010 the County Administrator sent Petitioner a "letter of counseling" raising a number of concerns regarding her leadership, supervisory and time-management skills. Petitioner was encouraged to "immediately make every effort to improve [her] management skills" and was warned that her failure to do so could result in a loss of her employment.

In October 2010, Petitioner received a second counseling notification — this time in the form of a memorandum from the newly appointed director. The director noted, among other things, Petitioner's  failure to timely submit various state-mandated reports and surveys to the Department's oversight agency.

Subsequently it was found that there were significant past deficiencies and omissions in the operation of the Department during Petitioner's tenure as deputy director and  was served with disciplinary charges in March 2011 pursuant to Civil Service Law §75 alleging various acts of misconduct. The Hearing Officer sustained the bulk of the charges and specifications filed against Petitioner and recommended Petitioner's "dismissal from service [as] the only viable solution."

The County Administrator adopted the Hearing Officer's findings and recommendation and terminated Petitioner’s employment. Petitioner appealed, challenging the County Administrator’s decision and asked the court to direct her reinstatement as deputy director of the Department with back pay.

The Appellate Division affirmed the County Administrator’s determination, explaining that "[T]he standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence in the record as a whole.”

The Appellate Division noted that [1] Credibility determinations solely within the province of the Hearing Officer and that it may neither substitute its own judgment for that of the Hearing Officer nor weigh the evidence presented and [2] a finding of incompetence only requires evidence of some dereliction or neglect of duty.

As to the issue of penalty, the Appellate Division said that it was “well settled” that it would set aside the penalty imposed "only if it is so disproportionate as to be shocking to one's sense of fairness."

Despite the Appellate Division's considering Petitioner's many years of service and her prior positive performance evaluations, the court said that it did not find the penalty of termination to be shocking to its sense of fairness, explaining that in this instance “the record reflects that although Petitioner twice was warned regarding serious and specific deficiencies in her job performance, she continued to exercise poor professional judgment with respect to, among other things, the management, training and supervision of [Department personnel].

Further said the court, “The record … illustrates that Petitioner's neglect of her duties — particularly with respect to her failure to implement certain policies and/or comply with mandated reporting requirements — not only created what [Department’s director] aptly described as ‘a huge public safety issue,’ but also exposed the County to liability.”

* According to the decision, written performance evaluations of the Petitioner ceased after 2004 because the then County Administrator “preferred to personally conduct yearly evaluations in his office.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03369.htm

Internet search engine focused on job opportunities

Internet search engine focused on job opportunities

On the Internet at: www.careerjet.com

Careerjet is a free employment opportunity search engine available to job seekers and offers users the ability to access jobs opportunities published on some 69,000 web sites. Careerjet indexes job descriptions from a large number of sources "around the web." The Careerjet's job search engine network encompasses over 90 countries, featuring separate interfaces that are translated into 28 languages.

Job seekers can search across these resources for positions in which they may be interested and once found, click on the link provided to get transferred to the original advertisement for specific information about the position[s] available.

Searching can be done using locations and other keywords such as "Attorney, Detroit" or "Human Resources Director, Los Angeles."

As examples, the two Careerjet posting shown below were dated May 13, 2013:

Staff Attorney [RFP-17]

ACLU 

Staff Attorney, Equality Center Voting Rights Program [CE-04] American Civil Liberties Union Foundation Legal Department, New York. The American Civil Liberties Union Foundation (ACLU), with now more than 500,000 members, was founded in 1920....

Director of Human Resources

City of Richmond

Job Title: Director of Human Resources Closing Date/Time: Continuous Salary: $153,875.00 Annually Job Type:Full-Time Location:City Hall, 900 East Broad Street, Richmond, Virginia .....

Professions and employment areas currently listed by Careerjet include: 

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Users may also post their resume and, in addition, create "job alerts" on Careerjet.

The State Commission on Public Integrity’s investigatory powers, including its power to issue a subpoena, do not terminate upon the issuance of a Notice of Reasonable Cause.

The State Commission on Public Integrity’s investigatory powers, including its power to issue a subpoena, do not terminate upon the issuance of a Notice of Reasonable Cause.

O'Connor v Ginsberg, 2013 NY Slip Op 03363, Appellate Division, Third Department

In 2009, the Commission on Public Integrity notified the then President and Chief Executive Officer of the State University of New York Research Foundation [CEO] that it had received information indicating that he may have violated Public Officers Law §74 (3) (d), (f) and (h). The information received by the Commission alleged that he had secured employment for an individual "for which she was not qualified and for which she did little or no work," and had given her privileges that he did not confer on the other Research Foundation employees.*

During the course of its investigation the Commission made several attempts to secure the CEO’s sworn testimony concerning these allegations on a voluntary basis. These efforts were unsuccessful and the Commission issued a subpoena requiring the CEO to appear before it. This resulted in the parties entering into an agreement whereby “in exchange for the Commission's withdrawal of the subpoena, [the CEO] would appear voluntarily for a sworn interview on a date certain. The agreement also provided that the CEO would be given an opportunity to provide an unsworn statement or explanation concerning the matters under investigation.

After the CEO failed to appear on the date scheduled the Commission issued a Notice of Reasonable Cause (hereinafter NORC)** alleging that the CEO had knowingly and intentionally violated Public Officers Law §74 (3) (d), (f) and (h). The CEO’s attorney notified the Commission that the subpoena that accompanied the NORC requiring the CEO to provide testimony “informed the Commission that the subpoena was ineffective and, thus, [the CEO] would not be appearing to give testimony.”

The CEO then sought a court order “directing [the Commission] to commence an administrative hearing on the NORC on a fixed date and to appoint an independent hearing officer to preside over the hearing.” The Commission opposed the CEO’s petition and asked the court for an order compelling the CEO to comply with its subpoena.

Supreme Court dismissed the CEO’s petition, finding that he had failed to demonstrate a clear legal right to the relief sought. The court also denied Commission’s motion, concluding that the Commission's power to issue a subpoena was limited to the investigatory period preceding the issuance of the NORC. ***

The Appellate Division expressed a different view, stating that the Commission's interpretation of its regulation****was consistent with the overall purpose and spirit of Executive Law §94, which is to "strengthen the public's trust and confidence in government through fair and just adjudicatory procedures that afford all parties due process protection and fair and just resolution of all matters." 

Accordingly, said the court, its investigatory powers were not truncated upon its issuing a NORC.

The Appellate Division pointed out that “[f]ollowing the issuance of a NORC, the Commission could become aware of other potential witnesses or additional information relevant to the possible violations. Thus, construing the regulation to permit the Commission to continue its investigation, despite having issued a NORC, would best serve the underlying purposes of the statute.”

Further, interpreting the regulation as “precluding investigation into new evidence, based solely on the fact that a NORC had been issued, would clearly impede the truth seeking function of the Commission.”

The Appellate Division concluded that the Commission's investigatory powers, including its power to issue a subpoena, do not terminate upon the issuance of a NORC.

Observing that the CEO “has continually resisted efforts by the Commission to secure his testimony,” the Appellate Division opined “the Commission should not be hamstrung by [the CEO’s] tactics …. To do so would abridge the Commission's statutory power to conduct an investigation and subpoena witnesses and ultimately impede its truth seeking function.”

* Subsequently the Commission issued a second letter in January 2010, which superceded and replaced the first letter, clarifying that the alleged misconduct related to acts occurring after April 25, 2007, the effective date of legislation that deemed the Research Foundation to be a "state agency" subject to the provisions of the State Code of Ethics set forth in Public Officers Law §74.

** See Executive Law §94 former [12] [b].

*** Supreme Court agreed with the Commission and dismissed the CEO’s petition. The CEO did appeal that ruling by Supreme Court but subsequently elected not to pursue it.

**** The Appellate Division pointed out that the interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference and should be upheld if not irrational or unreasonable, citing Transitional Services v NYS Office of Mental Hygiene, 13 NY3d 801.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03363.htm