Employment opportunities for attorneys – New York City

Employment opportunities for attorneys – New York City

The  City of New York, has a number of positions for attorneys available.  Job Vacancy Notices are posted on the Internet at  https://a127-jobs.nyc.gov/jobsearch.html?category=LEG

Appealing an arbitrator’s §3020-a disciplinary adverse decision

Appealing an arbitrator’s §3020-a disciplinary adverse decision

2014 NY Slip Op 05271, Appellate Division, Fourth Department

On January 15, the §3020-a Disciplinary Hearing Officer (HO) found the employee  [Petitioner] guilty of one or more of the disciplinary charges filed against him and issued a decision that imposed the penalty of termination. The HO e-mailed the decision to the attorneys for the parties* on January 15, and the State Education Department (SED) received the HO's decision from the HO on January 16. SED then mailed the HO's decision to the parties on January 22, 2013. Petitioner received SED’s mailing the following day – January 23 -- and he filed a notice of petition and petition seeking an order vacating the decision of the HO pursuant to CPLR §7511 on February 1.

In lieu of answering the petition, the Depew Union Free School District filed a pre-answer motion seeking to dismiss the petition on the grounds [1] that the proceeding was not timely commenced under Education Law §3020-a (5)**and [2] that the court lacked personal jurisdiction over Depew because the notice of petition and petition were not properly served on the School District. Depew contended that these documents were served on a payroll clerk employed by Depew and not the District’s clerk or an officer of the School District.***

Supreme Court granted Depew’s motion on both the filing and service grounds advanced by the School District. The court determined that the petition was not timely filed within the meaning of Education Law §3020-a (5) inasmuch as the petition was not filed within 10 days of Petitioner's receipt of the HO's decision from the HO via e-mail. The court further determined that Petitioner's service of the petition was defective inasmuch as there was no evidence that the "payroll clerk was a designated school officer of the [District]."

Addressing the issue of “timely filing,” the Appellate Division noted that Education Law §3020-a(4)(a) provides, in pertinent part, that "[t]he hearing officer shall render a written decision … and shall forward a copy thereof to the commissioner who shall immediately forward copies of the decision to the employee and to the clerk or secretary of the employing board." §3020-a(5)(a), in pertinent part, provides that "[n]ot later than [10] days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to [CPLR §7511]."

The primary consideration of courts in interpreting a statute is to "ascertain and give effect to the intention of the Legislature. Further, a statute or legislative act is to be construed as a whole, and all parts of an act are to be read and construed together to determine the legislative intent. The Appellate Division concluded that the phrase "receipt of the hearing officer's decision" in Education Law §3020-a(5)(a) refers to Petitioner’s receipt of the hearing officer’s decision from the SED.

Accordingly, said the court, the 10-day statute of limitations in which to appeal runs from the receipt of the HO's decision sent by SED rather than Petitioner’s receipt of the copy of the decision sent to him by the HO. The Appellate Division explained that in its view, “the legislature would not structure the distribution of the notice of an HO decision such that the Commissioner of Education (and, by natural extension, the SED) is to notify an educator of such determination and then create a period in which to challenge an HO decision that could begin to run before the entity charged with providing notice to an affected educator of an HO decision has actually given such notice.”

Although the Appellate Division concluded that Supreme Court erred to the extent it determined that the petition is time-barred, it nevertheless confirmed the lower court’s order granting Dryden’s petition because it agreed with Supreme Court’s ruling that Petitioner's service of the notice of petition and petition was defective.

Citing Franz v Board of Educ. of Elwood Union Free Sch. Dist. (112 AD2d 934, lv denied 67 NY2d 603), the Appellate Division said  "[t]he courts of this State have consistently required strict compliance with the statutory procedures for the institution of claims against the State and its governmental subdivisions, and where the Legislature has designated a particular public officer for the receipt of service of process, we are without authority to substitute another."

CPLR §311(a)(7), explained the court, provides, in pertinent part, that "[p]ersonal service upon a corporation or governmental subdivision shall be made by delivering the summons . . . upon a school district, to a school officer, as defined in the education law." Education Law §2 (13) defines the term school officer as "a clerk, collector, or treasurer of any school district; a trustee; a member of a board of education or other body in control of the schools by whatever name known in a union free school district, central school district, central high school district, or in a city school district; a superintendent of schools; a district superintendent; a supervisor of attendance or attendance officer; or other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system." A payroll clerk, said the court, was not an officer within the meaning of §311(a)(7) as Education Law §2130, entitled "Clerk, treasurer and collector in union free school district," provides for the appointment of an "individual as clerk of the board of education of such district."

Thus, said the Appellate Division, the reference to a singular clerk in §2130(1) must likewise apply to §2(13) of the Education Law such that there cannot be more than one person who is "a clerk" of the school district. The court’s conclusion: the payroll clerk was not eligible to be served with process as "a clerk" under section 2 (13). Judges Smith and Peradotto, however, concurred in the result but disagreed with the majority's conclusion that the petition was timely filed.

* Weeks v State of New York, 198 AD2d 615, discusses the procedural requirements that must be met in order to challenge an arbitration award pursuant to Article 75 and sets out guidelines addressing the filing a timely challenge to an arbitration award. The decision distinguishes between situations where the grievant is represented by an attorney and where he or she is represented by a union representative who is not an attorney. As a general rule, when an individual is represented by an attorney, delivery of the papers to the attorney is viewed as service on the individual. In such situations the attorney is deemed the individual's agent [see Bianca v Frank, 43 NY2d 168]. This was the underlying issue in Kalinsky v SUNY at Binghamton, 214 A.D.2d 860. The general rule is that: 1. If an individual is not represented by an attorney, the statute of limitations begins to run when the individual is served with the administrative determination; 2. If an individual is represented by an attorney, the administrative body may send a copy of the determination to the individual but the statute of limitations begins running upon service of the individual’s attorney; and 3. If the individual is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the individual to start the statute of limitations running.

** N.B. The Statute of Limitations set out in Article 75 is ninety days; however, in cases involving a motion to vacate an arbitration award issued pursuant to §3020-a of the Education Law the time limit is, by statute, ten days.

*** The payroll clerk had advised the process server that she was not authorized to accept service of legal document.

____________________________

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

____________________________

  
.

Disciplining employees for off-duty misconduct

Disciplining employees for off-duty misconduct

Source: Harris Beach NYMUNIBLOG

The NYCOM Municipal Bulletin. has published an article by Harris Beach attorney Edward A. Trevvett entitled Disciplining Employees for Off-Duty Misconduct: Maintaining Order While Avoiding the Pitfalls in its spring 2014 issue.

The article, posted on the Internet at http://www.harrisbeach.com/files/2014/Employee%20Discipline%20Article.pdf, cites relevant court decisions and discusses a number of factors employers should consider when thinking about disciplining an employee for off-duty job-related misconduct.

________________

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html 

________________

 
.

Overtime pay provisions set out in a collective bargaining agreement may not be applicable to police officers engaged in off-duty "outside employment”

Overtime pay provisions set out in a collective bargaining agreement may not be applicable to police officers engaged in off-duty "outside employment”

City of Syracuse v Syracuse Police Benevolent Assn., Inc., 2014 NY Slip Op 05251, Appellate Division, Fourth Department*

The Syracuse Police Benevolent Assn., Inc., [PBA] filed two grievances, both alleging that the City of Syracuse had violated the parties' collective bargaining agreement (CBA) by failing to pay overtime wages to its police officers providing security services during their off-duty hours at the Syracuse International Airport. In response to the PBA’s demand for arbitration the City file a petition pursuant to Article 75 of the CPLR seeking permanent stay of arbitration of both grievances.

The first grievance, Grievance 1, alleged that the CBA required the City to pay overtime for security services provided by police officers during their off-duty hours at the Syracuse International Airport. Although the Airport is owned by the City, it is managed by the Syracuse Regional Airport Authority (Authority). The second, Grievance 2, alleged that the CBA required the City to pay overtime to two such off duty police officers providing security at the Syracuse International Airport who were "dispatched" to a motel adjacent to the airport to "investigate a domestic dispute." 

According to the decision, the off-duty officers who provide security services at the airport are not hired to perform that work by the City nor are they hired by the Authority. They are hired by G4S Solutions, Inc. (G4S), a private security firm retained by the Authority.

Supreme Court granted the City’s petition and stayed the arbitration of both Grievances. The Appellate Division agreed with Supreme Court with respect to Grievance 1 but held that Supreme Court erred in staying the arbitration of Grievance 2.

The Appellate Division commenced its analysis of the Supreme Court’s ruling by indicating the basic procedures followed by the courts in deciding an application to stay or compel arbitration requires the court determining if the subject matter of the grievance arbitrable in contrast to the merit of the grievance. In so doing, the courts apply a two-part test:

1. Is there any statutory, constitutional or public policy bar to arbitrating the issue presented?

2. If it is decided that no such bar exists, the court must next determine if the parties, in fact, agreed to arbitrate the particular dispute by examining the relevant collective bargaining agreement.

Where there is specific provision in the CBA providing for submission of the dispute to arbitration, that provision controls. In contrast, where there is a broad arbitration clause, the court must determine if there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

As to the existence of a "reasonable relationship," if such a relationship is found to exist it is the role of the arbitrator, rather than the court, 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."

In this instance the court found that the CBA set out a broad arbitration clause and thus it was required to determine if there was a reasonable relationship between the grievance and the alleged violation of the CBA.

In Grievance 1 the PBA alleged that the City violated §8.5 of the CBA which section provided that the City "shall pay for a minimum of four hours' work at overtime rates when an off-duty employee is called in to work ordered overtime for a period of time which is not contiguous to that employee's regular tour of duty."

PBA contended that the off-duty officers working at the airport were entitled to four hours of overtime pay, over and above the hourly rate paid by G4S, each time they perform a "police function," such as "being directed to conduct traffic roadblocks … collect and turn in evidence, investigate suspicious activity and perform other vehicle and traffic duties that only on-duty police officers can perform."

The Appellate Division said that Supreme Court was correct in granting the City’s petition seeking to stay the arbitration “because the grievance is not reasonably related to the subject matter of the parties' CBA.” The grievance, said the court, is based on an alleged violation of §8.5 of the CBA, which relates to compensation for officers who are "called in" to perform "ordered" overtime. Here the off-duty officers working for G4S at the airport are not ordered to work overtime but electe to work for G4S during their off-duty hours.

Further, said the court, the off-duty officers are not "called in" by the City when they make an arrest at the airport or otherwise engage in police functions and PBA conceded that off-duty officers who provide private security services at other venues in the city are not entitled to overtime pay each time they engage in police functions in accordance with the overtime provisions set out in the CBA. The Appellate Division said that it did not perceive any reason to reach a different result with respect to the airport.

The court’s analysis of Grievance 2, also based on an alleged violation of §8.5 of the CBA, resulted in a different conclusion – that the subject of the grievance was reasonably related to the CBA and thus Supreme Court erred in staying the arbitration of Grievance 2.*

In Grievance 2 PBA contended that the two identified officers who, while working at the airport, were "dispatched" to a nearby motel to "investigate a domestic dispute," and those officers thereafter prepared a police report concerning the incident.

Noting that the grievance alleged that “the investigation of domestic violence calls has ‘historically been bargaining unit work’ … [and] that the officers in question were ordered to respond to the [motel] by an on-duty police officer, the Appellate Division concluded that Grievance 2 alleged violations reasonably related to the CBA and that it should be left to the arbitrator to "make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA]" and determine "whether the subject matter of the dispute fits within them."

* See City of Syracuse v Syracuse Police Benevolent Assn., Inc., 2014 NY Slip Op 05252
.

.

Whistle blower’s failure to cite any specific law, rule, or regulation allegedly violated by the employer in the complaint not fatal to pleading a viable cause of action

Whistle blower’s failure to cite any specific law, rule, or regulation allegedly violated by the employer in the complaint not fatal to pleading a viable cause of action

2014 NY Slip Op 04889, Appellate Division, Second Department

In an action to recover damages for violation of Labor Law §740, the plaintiff [WB] appealed an order of the Supreme Court that granted the employer's motion to dismiss the complaint for “failure to state a cause of action.”

A cause of action based upon Labor Law §740, commonly known as the "whistleblower statute," is available "to an employee who discloses or threatens to disclose an employer activity or practice which (1) is in violation of a law, rule or regulation, and (2) creates a substantial and specific danger to the public health'"*

The Article 78 petition alleged that the plaintiff [WB] was terminated from her position after she complained to her superiors about certain conduct that the employer engaged in or tolerated. It further alleged that such conduct violated various laws or rules or regulations, and threatened public health.

Although WB’s complaint did not specify any particular law, rule or regulation that the employer allegedly violated, the Appellate Division said that it sufficiently identified the complained-of conduct by the employer and provided the required notice. Therefore, said the court, the failure to specify in the complaint any law, rule, or regulation was not fatal to pleading a viable cause of action pursuant to Labor Law §740.**

Accordingly, said the Appellate Division, that branch of the employer's motion to dismiss the complaint for failure to state a cause of action should have been denied by Supreme Court.

Reversing the Supreme Court’s ruling “on the law,” the Appellate Division denied the employer’s motion to dismiss WB’s complaint for failure to state a cause of action.

* §75-B.2(a) of the Civil Service Law provides, in pertinent part, “A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.

** On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party must be given the benefit of all favorable inferences.

.