Suspensions without pay deemed appropriate penalties under the circumstances

Suspensions without pay deemed appropriate penalties under the circumstances

105 AD3d 613

The New York City Department of Correction suspended one correction officer, “M” for sixty days without pay and a second correction officer, “S” for thirty days without pay. M was found guilty using excessive force against an inmate and making false and misleading statements; S was found guilty of misconduct in preparing an official report and making false and misleading statements.

Finding that the Department’s determinations were supported by substantial evidence, the Appellate Division sustained the Department’s decision. As to the penalty imposed, citing the “Pell” standard, the court said that the “The penalty imposed does not shock one's sense of fairness” (Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02698.htm

Determining mandatory subjects of Taylor Law negotiations

Determining mandatory subjects of Taylor Law negotiations

Town of Haverstraw v Newman, 75 A.D.2d 874

The Appellate Division sustained PERB’S determination that “legal insurance”, family sick leave, uniform cleaning allowances and a safety clause in connection with Taylor Law negotiations between the Town and its police officer’s union were mandatory subjects of collective bargaining.

That determination, said the court, was a permissible interpretation of §201.4 of the Civil Service Law and it saw no reason to distinguish legal insurance from health insurance or group life insurance.

 The Appellate Division also commented that PERB was the expert here and that it would not substitute its judgment for that of PERB in this area.

Vacating an arbitration award

Vacating an arbitration award

2013 NY Slip Op 50666(U), Supreme Court, Part-orange County, Judge Catherine M. Bartlett [Not selected for publication in the Official Reports]

It is “black letter law” that an arbitration award will not be vacated "unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power and every reasonable intendment is indulged in favor of an award." Further, the burden of proving that an arbitrator's ruling "constituted misconduct rests with [the] respondent and must be met by clear and convincing proof."

In this case the employer commenced a special proceeding in an effort to vacate an arbitration award that provided for the temporary suspension of an employee without pay for “the balance of the school year” and required the employee to attend an anger management class.

The employer appealed in an effort annul the penalty imposed by the arbitrator, contending that under the circumstances this "punishment did not fit the crime" that the arbitrator's decision was irrational given the sworn testimony of various witnesses concerning the employee’s [mis]behavior, and argued that the "shockingly lenient penalty" was enough to shock the court's conscience and violated public policy. In lieu of the penalty imposed by the arbitrator, the employer sought the termination of the employee.

In rebuttal, the employee argued that the arbitrator’s decision to suspend him without pay and require his participation in anger management training was well within the bounds of the arbitrator’s decision making authority and should not to be upset by the court.

Judge Bartlett observed that “Under CPLR §7511, the court may scrutinize an arbitration award only on the narrow grounds specified in subdivision (b) and only upon the application of a party.” As to the employer’s public policy argument, the court pointed out that in Civil Serv. Empls. Assn., Town of Callicoon Unit, 70 NY2d 907, the Court of Appeals held that an arbitration award will not be vacated "unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

In addition, Judge Bartlett commented that “every reasonable intendment is indulged in favor of an award” and that in this instance the burden of proving that an arbitrator's ruling "constituted misconduct rests with [the employer] and must be met by clear and convincing proof,” citing Matter of Mencher, 276 App.Div. 556, 96 N.Y.S.2d 13.

As to the employer’s claim that the arbitrator’s award was violative of public policy, Judge Bartlett observed that an arbitration award will be vacated on public policy grounds only where such policy "prohibit[s], in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator."

As to the arbitration award at issue, Judge Bartlett held that “upon review of the arbitration decision on its face, it cannot be said as a matter of law that public policy precludes its enforcement,” explaining that in this instance the hearing officer determined that an effective suspension for almost four months without pay plus remedial action in the form of required anger management training was the appropriate penalty.

Noting that there was no evidence that the employee previously or subsequently engaged in similar conduct, and that the employee had expressed his remorse and complied with the penalties imposed by the arbitrator, the court said that the fact that the employer disagreed with the arbitrator’s determination “does not empower this Court to dismantle the process.”

Accordingly, Judge Bartlett denied the employer’s application in its entirety.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_50666.htm

An uncertified union or unrecognized employee organization has a limited access to use a school mailboxes to contact employees

An uncertified union or unrecognized employee organization has a limited access to use a school mailboxes to contact employees

PERB decision U-3885

PERB has held that the Taylor Law does not require a public employer to give an unrecognized or an uncertified union competing with the recognized or certified employee organization equal access to teachers or mailboxes for the purpose of soliciting members except when such contact is timely in connection with a relevant challenge period. 

A peer-review panel member’s evaluation of an individual may be withheld from disclosure pursuant to a FOIL request

A peer-review panel member’s evaluation of an individual may be withheld from disclosure pursuant to a FOIL request

Shaw v. Lerer, 112 Misc2d 260

Typically a request to obtain a public record[s] pursuant to the Freedom of Information Law is required only in the event the custodian of the public record[s] sought declined to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information.

It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

However, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute.

After officiating at interscholastic senior varsity hockey games for two years, Shaw was assigned only junior varsity events.

Rating summary sheets prepared by fellow officials evaluating Shaw were provided to him. Shaw, however, then demanded copies of the individual evaluations prepared by high school coaches pursuant to the Freedom of Information Law (§87, Public Officers Law). The request was denied and the Shaw filed a petition in Supreme Court challenging the custodian of the records decision not to provide the ratings to him.

Supreme Court dismissed Shaw’s petition, holding that the individual ratings of Shaw by the panel members fell within an exception to disclosure under the law as they were “interagency documents” (See POL 87.2g). The court stated that “If the disclosure is more harmful to the public than nondisclosure, the scales of justice must tip towards nondisclosure.”

In a similar case, a teacher was denied information concerning the votes of two other faculty members considering his application for tenure sued in federal court. The court held that there was no showing that the denial of tenure was for constitutionally impermissible reasons (Gray v. Board of Higher Education, City of New York, 92 FRD 82). Here, said the court, “the benefit likely to be gained by disclosure...for which privilege was claimed, was outweighed by the potential effect of ordering disclosure of confidential votes made under a peer review system”, a point noted by the court in Shaw as well.