Adequate evidence in the record supported the arbitrator’s determination that the employee was guilty of disciplinary charges filed against him

Adequate evidence in the record supported the arbitrator’s determination that the employee was guilty of disciplinary charges filed against him

2013 NY Slip Op 08027, Appellate Division, First Department

Supreme Court granted the New York City Department of Education’s motion to confirm an arbitration award terminating Educator’s employment as a New York City schoolteacher.

The Appellate Division affirmed the Supreme Court’s ruling, indicating that there was adequate evidence in the record to support the arbitrator’s determination that Educator was guilty of disciplinary charges and specifications alleging insubordination, neglect of duty, conduct unbecoming his position, and using language that constituted verbal abuse of his students as prohibited by the regulations of the Department of Education.

Further, said the court there was no basis to disturb the Hearing Officer's decision to credit the testimony of multiple students and the assistant principal over that of Educator.

Addressing Educator’s claim that that the arbitration award “was not in accord with due process and was arbitrary and capricious,” the Appellate Division said that Educator was given notice of the charges against him, had the opportunity to defend himself at a hearing at which he testified and presented other evidence, and was able to cross-examine witnesses.

Although thee Hearing Officer acknowledged that there were flaws in the investigation leading to the filing of disciplinary charges against Educator, he noted that it was fair and objective.

With respect to Educator’s challenge to the penalty imposed, termination, the Appellate Dividing said that such a penalty did not shock one's sense of fairness and that the record showed that the Hearing Officer considered mitigating circumstances such as Educator’s lack of and prior disciplinary history during his 14-year career with the Department of Education and the likelihood that Educator would not correct his inappropriate behavior.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08027.htm
.

A school board’s statutory discretion to set additional qualifications for appointment of an educator may not be impaired through collective bargaining.

A school board’s statutory discretion to set additional qualifications for appointment of an educator may not be impaired through collective bargaining.
Board of Educ. of Valhalla Union Free Sch. Dist. v Valhalla Teachers Assn., 2013 NY Slip Op 08076, Appellate Division, Second Department

The collective bargaining agreement [CBA] between the Board of Education of the Valhalla Union Free School District and the Valhalla Teachers Association provided that, where a teacher's position has been "excessed" and another position becomes available, the Board must appoint the teacher whose position was excessed to the available position, if the teacher is certified in the teaching area in the available position.

A Spanish language teacher retired and the Board made an appointment to the resulting vacancy. Two weeks later the Board "excessed" Teacher, a teacher of English as a second language.

The Association filed a grievance on behalf of Teacher claiming that Teacher, who was certified to teach Spanish and had experience teaching the subject in another school district, should have been appointed to the Spanish language teacher position.

The Superintendent of Schools denied the grievance and ultimately the Association demanded the grievance be submitted to arbitration. The Board thereupon filed a petition to permanently stay arbitration, contending that the CBA provision at issue conflicted with public policy and the mandates of the Education Law.

The Supreme Court denied the Board’s petition, which decision the Appellate Division reversed and granted the Board’s petition to permanently stay arbitration of the grievance.

The Appellate Division explained that the intent to arbitrate of parties to a collective bargaining agreement in the field of public employment may not be presumed but "[I]t must be taken, in the absence of clear, unequivocal agreement to the contrary, that the board of education did not intend to refer differences which might arise to the arbitration forum," and such reference "may not be based on implication.”

In County of Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d 513, the Court of Appeals set out the following “two-part test” to determine whether a dispute between a public employer and the organization representing its employees is subject to arbitration:

1. Whether anything in a statute, constitution, or public policy prohibits the parties from referring the dispute to arbitration; and 

2. Whether the language of the CBA indicates a clear agreement between the parties to arbitrate the matter.

Noting that the Education Law §§3012[1][a]; 1709[16] vests discretion to the board of education, upon recommendation of the superintendent of schools, to appoint "qualified" teachers to nontenured teaching positions, the Appellate Division said determining if a prospective candidate is possessed of qualifications "is a responsibility of the type that may not be bargained away, as it is central to the maintenance of adequate standards in the classroom."

The court said that the CBA provision at issue mandates that the Board appoint a "certified" teacher, whose position has been "excessed," to a vacant position in the teacher's area of certification.

Noting that although certification may be a central qualification, the Appellate Division, citing Education Law § 2573[9], said that the Board has discretion under that provision to prescribe additional qualifications. In this instance, said the court, the CBA, in effect, divests the Board of its discretion by mandating automatic appointment of certified teachers without inquiry into any additional qualifications the Board may have prescribed. The Appellate Division held that such discretion may not be bargained away through collective bargaining.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08076.htm
.

Employee placed on administrative leave without pay after failing to report to work

Employee placed on administrative leave without pay after failing to report to work

2013 NY Slip Op 07183, Appellate Division, Second Department

Employee challenged Employer’s placing her on “administrative leave without pay,” contending that Employer had ”wrongfully suspended her without pay for a period exceeding 30 days in violation of Civil Service Law §75(3).” Employee had been served with disciplinary charges pursuant to §75.

Supreme Court dismissed Employee’s Article 78 petition; the Appellate Division affirmed the lower court’s ruling.

The Appellate Division noted that as the issue “under review” – Employee’s suspension without allegedly in violation of Civil Service Law §75(3), had not been made as a result of a quasi-judicial evidentiary hearing it would review the determination under the standard set forth in CPLR 7803(3) and consider only “whether the determination was made in violation of lawful procedure, was affected by an error of law, was arbitrary and capricious, or was an abuse of discretion.”

Although Employee argued that suspension without pay was unlawful to the extent that it exceeded a suspension for 30-days without pay permitted pursuant to §75(3), the Appellate Division ruled that Employee had not been suspended without pay pending the hearing and determination of charges of incompetency or misconduct within the meaning of 75(3).

Rather, explained the court, Employee had “failed to report to work,” whereupon she was placed on administrative leave without pay pending her return to work

Accordingly, the Appellate Division found that Employer had not violated Civil Service Law §75(3) and thus its determination “was not made in violation of lawful procedure.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07183.htm
.

Refusing to use employer supplied equipment that was mandatory in performing the duties of the position results in dismissal of the employee

Refusing to use employer supplied equipment that was mandatory in performing the duties of the position results in dismissal of the employee
2013 NY Slip Op 08128, Appellate Division, First Department

In a number of instances employees have been disciplined because of their unauthorized use of the employer’s equipment in violation of the employer’s rules.

For example, a 15-day suspension without pay was recommended as the disciplinary penalty after the worker was found guilty of using a department vehicle for an unauthorized purpose [OATH Index No. 1976/08] while an employee found guilty of the misuse of employer’s e-mail to senda "questionable e-mail" to his co-employees was terminated [Smith v Commissioner of Labor, 296 AD2d 803].

In this case Employee challenged her termination because she refused to use equipment supplied by Employer in order for Employee to perform the duties of the position. The equipment in question: an electronic ticket issuing machine [TIM], the use of which was mandatory by individuals performing the duties of a train conductor when issuing tickets to passengers.

The Appellate Division dismissed Employee’s appeal, noting that although Employer was not obligated to exempt Employee from the system-wide mandatory use of the TIM, it had ‘engaged in a good faith interactive process and offered [Employer] a choice of positions that did not require use of the TIM, which she rejected”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08128.htm
.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 7, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending December 7, 2013

Click on text highlighted in color  to access the full report

State Comptroller co-sponsoring webinars for local officials

The Office of the State Comptroller devotes significant resources to assisting local officials. Whether you’re newly elected or a returning veteran, there are many exciting opportunities and interesting challenges that lie ahead. To help ease your transition, my office is co–sponsoring a webinar with the Association of Towns of the State of New York on December 12, 2013 as well as two New Town Officials Schools in the second and third week of January. For additional details and registration information, please visit: http://www.osc.state.ny.us/localgov/training/index.htmand www.nytowns.org.

Comptroller DiNapoli Releases Municipal Audits

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

the City of Little Falls;

the Swan Lake Fire District; and

the Town of Wawayanda.

"Let State Comptroller Audit LDCs in New York" Op–Ed by State Comptroller DiNapoli

New York State Comptroller Thomas P. DiNapoli has published an op–edin the Rochester Democrat & Chronicle, "Let State Comptroller Audit LDCs in New York," which details the problems and reasons more oversight of Local Development Corporations by his auditors is necessary.

State Comptroller DiNapoli, A.G. Schneiderman & DOI Commissioner Gill Hearn Announce Arrest of Not–For–Profit Executive in Six–Year Theft Scheme

Comptroller Thomas DiNapoli, Attorney General Eric T. Schneiderman and New York City Department of Investigation (NYC DOI) Commissioner Rose Gill Hearn Thursday, December 5, 2013 announced the arrest of a nonprofit executive accused of pocketing taxpayer dollars intended for public services and capital improvements in New York City. A multi–agency joint investigation, including NYC DOI and two federal agencies, exposed the theft of approximately $373,000 in public funds provided by New York State, the New York City Council, and federal earmark grants.

DiNapoli Leads Investor Group Urging Olympic Corporate Sponsors to Speak Out for Russian LGBT Rights

New York State Comptroller Thomas P. DiNapoli announced on Thursday, December 5, 2013 that the $160.7 billion New York State Common Retirement Fund, leading a coalition of investors with $327 billion of assets under management, has sent lettersto ten major corporate sponsors of the upcoming Winter Olympic Games in Sochi, Russia urging the sponsors to use their influence to ensure the human rights of Russian citizens, as well as athletes and visitors to the Olympics.

DiNapoli to Audit Hate Crime Reporting in New York State

The Office of the State Comptroller is auditing the Division of Criminal Justice Services’ oversight and management of hate crime reporting across the state, State Comptroller Thomas P. DiNapoli announced Friday, December 6, 2013.

.