The Commissioner of Education to determine if two positions are sufficiently similar within the meaning of Education Law §2510 in the first instance

The Commissioner of Education to determine if two positions are sufficiently similar within the meaning of Education Law §2510 in the first instance
Matter of Alden Cent. Sch. Dist. (Alden Cent. Schools Administrators' Assn.), 2014 NY Slip Op 02185, Appellate Division, Fourth Department

The school district filed an Article 75 petition seeking to stay arbitration of a grievance challenging the level of the compensation paid to an individual represented by the union who had been laid off from her position of principal of an elementary school and thereafter appointed from the preferred list to serve as an assistant principal at a middle school at a lower salary. The union filed a cross-petition seeking to compel arbitration of the grievance, contending that the educator’s new position was “sufficiently ‘similar’ within the meaning of the Education Law §2510(3)(a) such that she is entitled to the same level of pay.”

Supreme Court denied the school district’s petition for a stay of arbitration. The Appellate Division, however, reversed the lower court’s ruling and granted the district’s petition to stay the arbitration of the grievance.

Noting that it is well settled that, in deciding an application to stay or compel arbitration under CPLR §7503 the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim, the Appellate Division explained that in making the threshold determination of arbitrability, the court applies a two-part test.

A court first determines whether "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. If no prohibition exists, [the court then determines] whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

In this instance the Appellate Division said that it agreed with the school district that the Commissioner of Education has primary jurisdiction over the parties' dispute, and that arbitration is therefore prohibited by public policy.

The court said that the Commissioner of Education has the specialized knowledge and expertise to resolve the factual issue of whether the former position and the new position are similar within the meaning of Education Law §2510(3)(a). Accordingly, concluded the Appellate Division “the Commissioner of Education should ‘resolve, in the first instance’ the issue of fact whether two positions are sufficiently similar under Education Law §2510.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_02185.htm

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Application to stay or adjourn a disciplinary hearing

Application to stay or adjourn a disciplinary hearing
OATH Index No. 503/14

A New York City firefighter’s application to stay or adjourn disciplinary hearing pending the outcome of a state court proceeding was denied by a New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge 

Judge Faye Lewis explained that the existence of a pending civil action does not generally provide a basis for a stay of an administrative disciplinary proceeding and the issues raised in the disciplinary proceeding were not preclusive of the issues raised in the Notice of Claim filed by respondent in state court.

In addition, the ALJ commented that the firefighter’s application demanding that the employer produce witnesses and document was denied in large part because it was based upon the firefighter’s defense of selective enforcement, which is not a proper defense in an administrative proceeding but can be asserted only upon judicial review of an adverse decision. 

ALJ Lewis also denied the firefigher’s motion to suppress statements made at investigatory interview on the ground that the questioning went beyond the scope of the interview notice. Judge Lewis noted that the firefighter was represented by counsel at the interview and it does not appear that his statements were made involuntarily. Further, noted the ALJ, "if the questioning violated [firefighter's] contract, the remedy would be to file a grievance, not suppression. 

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/14-503md.pdf

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The positions of village clerk/treasurer and village court clerk when filled by the same individual are incompatible

The positions of village clerk/treasurer and village court clerk when filled by the same individual are incompatible
Informal Opinions of the Attorney General 2014-1

This opinion indicates that typically a village court clerk transmits certain funds to the village treasurer, and the a village treasurer maintains the funds and transfers some portion of them to the county and State.

Accordingly, the two officials serve as a fiscal check on each other and a safeguard for these funds.

In this instance, said the Attorney General, one person serves as both village treasurer and village court clerk. In the opinion of the Attorney General performing such a dual role would compromise this neccessary fiscal check. He advised that in his view the duties of the positions therefore conflict and the positions are incompatible.

The opinion's conclusion: One person may not perform the duties of both positions simultaneously, whether they are combined into one or the same person is appointed to both.

The opinion is posted on the Internet at:
http://www.ag.ny.gov/sites/default/files/opinion/2014-1_pw.pdf

Supplemental military leave benefits

Supplemental military leave benefits
I.D. No.CVS-14-14-00001-P

The New York State Department of Civil Service has proposed to amend 4 NYCRR 21.15 and 4 NYCRR 28-1.17, both of which provided supplemental military leave benefits to eligible officers and employees of the State as the employer. whereby the availability of supplemental military leave benefits for would be extended until December 31, 2014.

The text of proposed rule and any required statements and analyses may be obtained from Shirley LaPlante, NYS Department of Civil Service, Albany, NY 12239, (518) 473-6598. You may email Ms LaPlante at: shirley.laplante@cs.state.ny.us .

Data, views or arguments may be submitted to Ilene Lees, Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624 or they may be e-mailed to her at: ilene.lees@cs.state.ny.us

Public comment will be received until 45 days after publication of this notice in the State Reporter dated April 9, 2014.

Individual is required to make a timely demand for reinstatement following submission of his or her resignation allegedly made under duress

Individual is required to make a timely demand for reinstatement following submission of his or her resignation allegedly made under duress
2014 NY Slip Op 01905, Appellate Division, Fourth Department

Petitioner, a former police officer, filed a petition pursuant to CPLR Article 78 seeking to compel his former employer to reinstate him to his former position with back pay, alleging that although he had submitted his resignation, it was obtained under duress -- i.e., threats of criminal prosecution were made by City officials against him.* Thus, Petitioner argued, the resignation was invalid.

Supreme Court dismissed  Petitioner’s complaint on the ground that it was untimely, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that "Where, as here, a public employee is discharged without a hearing, the four-month limitations period set forth in CPLR 217 begins to run when the employee's demand for reinstatement is refused." The court then observed that such a “demand must be made within a reasonable time after the right to make the demand occurs or . . . within a reasonable time after [Petitioner] becomes aware of the facts which give rise to his [or her] right of relief," noting that the four-month limitations period of CPLR article 78 proceedings has been "treat[ed] . . . as a measure of permissible delay in the making of the demand."

In this instance, said the court, Petitioner's right to demand reinstatement to his position arose, at the latest, when he received a letter from the District Attorney stating that he bore no civil or criminal responsibility for the acts of misconduct alleged against him, and that the matter would not be presented to the grand jury.

Petitioner, however, did not demand reinstatement to his position until approximately nine months later, well over the four-month guideline. The Appellate Division ruled that Supreme Court "it was [well] within [its] discretion to determine that Petitioner unreasonably delayed in making the demand."

* In Rychlick v Coughlin, 63 NY2d 643, the court said that the threat to file formal disciplinary charges if the employee did not resign does not constitute duress as it is not duress to threaten to do what one has the legal right to do.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01905.htm

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