An arbitrator's determination made pursuant to a statutory mandate to arbitrate the dispute is subject to closer judicial scrutiny than would be the case had the arbitration been conducted voluntarily

An arbitrator's determination made pursuant to a statutory mandate to arbitrate the dispute is subject to closer judicial scrutiny than would be the case had the arbitration been conducted voluntarily

2013 NY Slip Op 05816, Appellate Division, Second Department

An educator [Teacher] submitted an application to the School District seeking employment as a physical education teacher and was appointed to the position.

The School District subsequently contended that the application, which Teacher “certified to be true and complete,” failed to disclose that he had previously held a probationary teaching position with another school district. The District also claimed that Teacher had resigned from this previous position after allegations were made that he used corporal punishment and he was told that he would not receive tenure. As a result, the School District preferred three disciplinary charges against Teacher pursuant to Education Law §3020-a.

Charge No. 1 alleged that Teacher was guilty of misconduct because he had presented an employment application to the District that was false because he knowingly omitted the fact that he had been a probationary teacher at another school district. Teacher moved to dismiss the charge, contending that it was time-barred by Education Law §3020-a, which provides that no disciplinary charge may be brought more than three years after the occurrence of the alleged incompetency or misconduct.

Charge No. 1, however, also alleged that Teacher's conduct was in violation of Penal Law §175.30. §175.30 defines the crime of offering a false instrument for filing in the second degree. While the School District agreed that “no disciplinary charge may be brought more than three years after the occurrence of the alleged incompetency or misconduct,” it contended that Charge 1 was timely under the exception to the three-year statute of limitations set out in Education Law §3020-a(1) as the charge alleged “misconduct constituting a crime when committed."

The arbitrator granted Teacher’s motion, concluding that the District had failed to plead sufficient facts to establish that Teacher’s action constituted a violation of Penal Law §175.30 and thus the School District could not invoke the exception to the three-year limitations period that applies when the charged misconduct constitutes a crime.

The District challenged the arbitrator’s ruling and filed a CPLR Article 75 petition seeking to vacate the award dismissing Charge No. 1 on the ground that it was arbitrary and capricious and lacked a rational basis. The Supreme Court granted the District's petition and reinstated Charge No. 1. Teacher appealed.

The Appellate Division affirmed the Supreme Court’s decision, rejecting Teacher's contention that the Article 75 petition should have been dismissed because courts do not have the authority to review an interlocutory award dismissing one of the charges in an arbitration proceeding brought pursuant to Education Law 3020-a.

Although, said the Appellate Division, typically a court lacks authority to entertain a petition to review an interlocutory ruling of an arbitrator on a procedural matter, here the award sought to be reviewed is not one which involves "only a very limited procedural question" but involved the dismissal the most serious disciplinary charge preferred against Teacher and the only one of the three charges which alleged that he was guilty of misconduct.

Thus, explained the court, “the award is final as to that charge” and, if allowed to stand, would prevent the School District from adducing evidence in support of the alleged misconduct at the hearing. Under these circumstances, the award dismissing Charge No. 1 can be viewed as a final determination subject to review under CPLR 7511.

Significantly, the Appellate Division noted that “Where, as here, the obligation to arbitrate arises through statutory mandate [see Education Law 3020-a.3.a.] the arbitrator's determination is subject to closer judicial scrutiny than it would receive had the arbitration been conducted voluntarily.”

In this instance the court ruled that the arbitrator’s determination that Charge No. 1 failed to plead sufficient facts to establish that Teacher had violated Penal Law §175.30 was arbitrary and capricious as Charge 1 sufficiently alleged misconduct which, if proven, would constitute the crime of offering a false instrument for filing in the second degree by alleging that Teacher presented an employment application to the District which was false because he knowingly omitted the fact that he had been a probationary teacher at another school district, and that he had presented the employment application with the knowledge or belief that it would be filed with the District.

Accordingly, the Appellate Division ruled that as Charge No. 1 was sufficient to plead conduct constituting a crime, it was not barred on its face by the three-year limitations period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05816.htm

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Arranging trips for “senior citizens” living in the jurisdiction

Arranging trips for “senior citizens” living in the jurisdiction

Informal Opinions of the Attorney General 87-18

A number of New York State towns and villages have a senior citizen division that organize or provide various recreational opportunities for their senior residents. Such activities may include offering day trips to nearby locations and multi-day trips to more distant places.

In response to an inquiry from a municipality that wished to use the services of a travel agency in making arrangements for such trips, the Attorney General concluded that “a prohibited conflict of interest exists” should a municipal employee “charged with arranging tourist travel" on behalf of the jurisdiction senior citizen "accepts a free trip from the travel agency that sponsor the trip.”

The Attorney General explained that “When one of the travel agencies sponsoring these trips offers a free trip to the leader, we believe that an appearance of impropriety results.”

In addition to the possibility of a “common law conflict of interest” that may be operative in this instance, the Attorney General noted that “acceptance of the free trip by the leader would probably violate Section 805-a of the General Municipal Law.”

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Resolution of an impasse in collective bargaining may be referred to a financial restructuring board in lieu of referral to existing interest arbitration panel

Resolution of an impasse in collective bargaining may be referred to a financial restructuring board in lieu of referral to existing interest arbitration panel

Chapter 67 of the Laws of 2013

Chapter 67 of the Laws of 2013 amended the State Finance Law, the Local Finance Law and the Civil Service Law with respect to financial restructuring boards for local governments. In particular, the Chapter amends §209 of the Civil Service Law in relation to public arbitration panels determinations by adding a new subdivision 4-a and a new subdivision 6-a.

Karlee S. Bolaños, Esq., has addressed the impact of this legislation in the event a distressed municipality and union at impasse “jointly request” a financial restructuring board to resolve an impasse in collective bargaining in lieu referring the impasse to existing interest arbitration panels. 

The following are among the several issues considered by Ms. Bolaños in her article:

1. What are Financial Restructuring Boards and who will be members?

2. What is the role of the Financial Restructuring Board?

3. What is a fiscally eligible municipality?

4. How does interest arbitration come into play? and

5. To which agreements will the law apply?

Ms. Bolaños’ analysis and comments are posted on NYMuniBlog, a LawBlog maintained by the law firm of Harris Beach, PLLC as a public service at: http://nymuniblog.com/?p=3488

The Financial Restructuring Board for Local Government's web site is at:
http://www.frb.ny.gov/
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Falsification of time records results in suspension without pay

Falsification of time records results in suspension without pay

Decisions of the Commissioner of Education, Decision 11682

Decisions of the Commissioner of Education, Decision 11111

Decision 11682

A teacher charged 11 days of absence over a 3 1/2 month period to her sick leave accruals. The District subsequently learned that the teacher had reported for work at her second job or had attended scheduled classes in an evening course in which she was enrolled on the same days that she had been absent on sick leave.

The District filed disciplinary charges against the teacher pursuant to Education Law §3020-a. The disciplinary hearing panel found the teacher guilty of all but one of the specifications, ruling that her actions constituted conduct unbecoming a teacher and neglect of duty. It imposed a penalty of suspension without pay for three months .

The District appealed, seeking approval to dismiss the teacher. The teacher, on the other hand, asked the Commissioner to vacate the panel's decision and dismiss the charges filed against her.

The Commissioner, sustaining the panel's decision, ruled that the penalty imposed by the panel for the teacher’s abuse of sick leave was, in this case, appropriate and affirmed the penalty imposed by the §3020-a disciplinary panel. 

Decision 11111

 In another Education Law §3020-a disciplinary action involving an alleged falsification of time records, the Commissioner upheld the disciplinary hearing panel's finding the teacher guilty of the charges filed against her alleging that she had misuse of family sick leave benefits. The Commissioner also upheld the disciplinary penalty imposed by the panel: -- a suspension without pay for 9 1/2 months for "abuse of sick leave benefits."

The disciplinary hearing panel had found that the teacher had absented herself from work, charging her absence to her sick leave credits for an alleged “family illness” for three days immediately preceding the School District’s spring recess. The teacher, however, chanced to meet her principal at a vacation site that they both were visiting on one of the days she had charged to her “family sick leave” leave credits. 
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Extending the statute of limitations for bring a disciplinary action pursuant to Civil Service Law §75

Extending the statute of limitations for bring a disciplinary action pursuant to Civil Service Law §75

OATH Index No 1889/13

§75 of the Civil Service Law provides that disciplinary charges must be served on the accused individual no later than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges or, in the case of a state employee who is designated managerial or confidential within the meaning of Article 14 [The Taylor Law] of the Civil Service Law, more than one year after the occurrence of the alleged incompetency or misconduct. However, such limitations do not apply where the alleged acts of incompetency or misconduct would, if proved in a court of appropriate jurisdiction, constitute a crime.*

An employee charged with a number of alleged acts or omissions claimed to constitute misconduct pursuant to Civil Service Law §75 asked Administrative Law Judge Tynia D. Richards to “dismiss these ‘5-year-old charges’ as untimely”

The appointing authority thereupon amended the charges to include an allegation of the crime of “official misconduct” and contended that the alleged underlying charges were entitled to the “crimes” exception to the limitations period. 

Penal Law §195.00 defines the crime of official misconduct as follows: A public servant is guilty of official misconduct when, with intent to obtain a benefit or to deprive another person of a benefit:

1. He or she commits an act relating to [his or her] office but constituting an unauthorized exercise of [his or her] official functions, knowing that such act is unauthorized; or

2. He or she knowingly refrains from performing a duty that is imposed upon [him or her] by law or is clearly inherent in the nature of [his or her] office.

Citing People v. Esposito, 160 A.D.2d 378, Judge Richard said that to prove official misconduct, it must be demonstrated that the public servant so charged has acted with the intent to obtain a benefit for himself or another.”

The ALJ granted the employee’s motion to dismiss the disciplinary charges in their entirety, ruling that the charges alleged were inadequate to establish all elements of the crime, in particular, the employee’s intent to gain a benefit.

* N. B. An alternative “disciplinary procedure” negotiated in accordance with §76 of the Civil Service Law may set a different statute of limitations for initiating disciplinary action against an employee.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-1889.pdf
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