Disciplinary arbitration award remanded for reconsideration of the appropriate penalty to be imposed for a second time

Disciplinary arbitration award remanded for reconsideration of the appropriate penalty to be imposed for a second time

Social Services Employees Union v City of New York, 2014 NY Slip Op 04120, Appellate Division, First Department

In 2009 Supreme Court, New York County granted the Social Services Employees Union’s [Union] petition to confirm a disciplinary arbitration award that reinstated its member [Employee] to his former position and awarded him back pay and seniority.

The Appellate Division unanimously reversed the Supreme Court’s ruling, on the law, and remanded the matter to the arbitrator for a determination of an appropriate penalty * The Appellate Division explained that the arbitrator's "failure to give preclusive effect to Employee’s guilty plea of petit larceny" was irrational. The court noted that the arbitrator's award placed Employee back into a position where he has the responsibility to voucher property of individuals being brought into a juvenile facility.

In reconsideration of the penalty to be imposed upon the remand, the arbitrator issued an arbitration award that directed Employee’s reinstatement “to a civil service position with certain limitations of responsibility, along with an award of full back pay, seniority and benefits.” Supreme Court granted the Union’s Article 75 petition to confirm this second arbitration award. The City appealed.

The Appellate Division again vacated Supreme Court’s action, holding that “The award issued upon remand by the arbitrator was irrational as it was not in accord with [its] directive that [the Union] member's criminal conviction mandated a finding of employee misconduct warranting a penalty.” Here, said the court, the reinstatement of Employee "to a civil service position with certain limitations of responsibility, along with an award of full back pay, seniority and benefits, effectively did not impose any penalty.”

The Appellate Division then remanded the matter to a different arbitrator for the purpose of setting an appropriate penalty, which, said the court, could be any penalty within the range of penalties available to the arbitrator to impose.

Judges Saxe and Freedman, dissented, indicating that, in their view, “the award was rational and complied with this Court's directions in its prior order in this matter.

In situations where an employee is charged with misconduct after he or she has been convicted of a crime involving the same unlawful action or activity, the accused individual may argue that "double jeopardy" bars his or her being subjected to administrative disciplinary action involving the same events that led to his or her conviction of a crime. 

Although the Double Jeopardy Clause in the Fifth Amendment to the U.S. Constitution prohibits anyone from being prosecuted twice for substantially the same crime and is typically raised as a "procedural defense" in a criminal proceeding, does not bar the filing administrative disciplinary charges against an individual against whom criminal charges have been filed involving the same event or events. 

Indeed, as the Appellate Division held in Kelly v Levin, 81 A.D.2d 1005, if an individual has been found guilty of criminal conduct in a criminal trial, a disciplinary hearing panel cannot find the individual not guilty of the same offense[s] in a subsequent administrative disciplinary action. 

Although an individual may be found not guilty of alleged criminal acts in a criminal action, he or she may be found guilty of such conduct in an administrative proceeding as there is a lesser standard of proof to be met in the case of an administrative action. In an administrative proceeding a person must be proved guilty of the acts or omissions alleged by "substantial evidence." In contrast, in a criminal trial "guilt beyond a reasonable doubt" must be proved by the charging party.

* See Matter of Social Servs. Empls. Union, Local 371 v City of N.Y., Dept. of Juvenile Justice, 82 A.D.3d 644

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A school board must comply with its own rules and regulations, which have the force and effect of law

A school board must comply with its own rules and regulations, which have the force and effect of law

2014 NY Slip Op 05014, Appellate Division, Third Department

A former employee [Petitioner] of the school district filed a complaint with Board of Education alleging that the school superintendent, among others, had subjected her to unlawful discrimination and harassment. She further alleged that she was forced to retire from her position due to retaliation.

The Board, because the superintendent was allegedly involved in such unlawful activities, appointed independent counsel, MP, to investigate Petitioner's complaints. MP’s final report recommended that Petitioner’s complaint be dismissed. Petitioner then requested a copy of the full report and a hearing before the Board on her appeal challenging MP's findings. Her request for a hearing was refused and the Board only provided Petitioner with the three-page conclusion section of MP’s 73-page report

Petitioner initiated an Article 78 proceeding, seeking a court order compelling the Board to release MP’s full report to her pursuant to the Board's regulations and to hold an evidentiary hearing on her appeal of MP's findings.

Focusing on the issue concerning the releasing the full report, this aspect of Petitioner’s action was “in the nature of mandamus.”*  Such an action is initiated "to enforce a clear legal right where the public official has failed to perform a duty enjoined by law," and is available only "to compel a governmental entity or officer to perform a ministerial duty,”

Supreme Court had ruled that Petitioner had the right to a hearing before the Board and to a copy of the report, but directed the Board to submit the report for in camera** review by the court “given the confidential nature of the disclosures contained in it.” Supreme Court ultimately concluded that the report was "inappropriate for comprehensive redaction," and issued an order directing that only MP's truncated report be disclosed to Petitioner.

Petitioner appealed, contending that Supreme Court erred in failing to compel the Board to release MP’s full report to her in accordance with the Board's policies and regulations. The Appellate Division agreed, noting that the relevant Board regulations provided that "a written record of the investigation and any action taken will be established," and contemplates that the complainant would receive a copy of the complaint officer's [here MP’s] report. The court further noted that “it is well settled that absent a conflict with a statute, the rules and regulations promulgated by a board of education have the force of law and are binding upon it.”

Under the Board’s regulations Petitioner would have received both a copy of the complaint officer's report and all reports issued by the superintendent on either the investigation or the outcome of the proceeding. No report was issued by the superintendent, who in this instance was named as a respondent in Petitioner's complaint. Accordingly, MP prepared the written report of the investigation made at the Board’s request.

Although Petitioner argued that the Board regulations mandated full disclosure of MP's report, the Board contended that it correctly provided Petitioner with only the three-page conclusion section of MP’s 73-page report "because the regulation requires the release only of the superintendent's report."

The Appellate Division said that in its view, the Board's interpretation “is inconsistent with the language of the regulation, which is mandatory" and requires that both the complainant and those accused of wrongdoing "will have received at least one report pertaining to the investigation/outcome of the formal complaint prior to the Board holding a hearing on the matter.”

The court then observed that “Even assuming that [MP] was appointed to perform only the complaint officer's role — as opposed to the superintendent's role — in the adjudicatory structure set forth in the regulation, a complainant is entitled to a copy of the complaint officer's report under the regulation. Nevertheless, the Board failed to provide either [Petitioner] or this Court with a copy of the report.”

Supreme Court had concluded that the entirety of the report should not be released because it is "more or less a journal . . . full of conjecture and hearsay and all kinds of materials that were, maybe, proper for [MP] to consider in reaching her conclusions, but certainly didn't need to be put into that kind of report." The Appellate Division disagreed, stating that “The quality and style of the report, however, does not impact [Petitioner's] right to receive it under [the Board’s regulation].”

The bottom line: the Appellate Division ruled that “Under these circumstances, [Petitioner] has established both a clear legal right to relief and that the [Board’s] duty to disclose the report was nondiscretionary. Accordingly, [the Board] must be compelled to comply with the terms of [its regulation] and release the full [MP] report to [Petitioner]”

* The writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform." Other ancient “common law” writs included the writ of prohibition -- issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority] used to challenge a person's right to hold a public or corporate office. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

** Latin for "in chambers." In this instance Supreme Court privately looks at MP’s report to determine what, if any, information may be revealed to a party or made public.
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If a preexisting dormant disease is aggravated by an accident, resulting in a disability that did not previously exist, the accident is responsible for the ensuing disability

If a preexisting dormant disease is aggravated by an accident, resulting in a disability that did not previously exist, the accident is responsible for the ensuing disability

2014 NY Slip Op 05007, Appellate Division, Third Department

A lieutenant with the Port Authority of New York and New Jersey [Lieutenant], applied for performance of duty and accidental disability retirement benefits in 2009, claiming that he was permanently incapacitated due to injuries to his back and right shoulder sustained as the result of a 2009 accident.

As to Lieutenant’s medical condition, his neurologist concluded that he suffered from a progressive narrowing of the spinal canal and, due to the 2009 accident, disc herniation was causing nerve root compression. In contrast, the Retirement Systems orthopedic surgeon concluded that the disc herniation and shoulder injury were degenerative in nature and caused by the early injuries and surgeries, rather than the 2009 accident, which had caused only a temporary exacerbation of Lieutenant's underlying arthritic condition.

The Hearing Officer recommended that Lieutenant 's applications be denied on the ground that he did not prove that his conceded disability resulted from the 2009 accident. Adopting the hearing officer’s findings and recommendation, the Comptroller denied Lieutenant’s application and he appealed.

The Appellate Division annulled the Comptroller’s determination, explaining that it has repeatedly held that "'when a preexisting dormant disease is aggravated by an accident, thereby causing a disability that did not previously exist, the accident is responsible for the ensuing disability”

Although the Retirement System's expert speculated that Lieutenant had suffered a number of injuries prior to 2009, “It is undisputed that he returned to full duty” after those events and thereafter after he suffered an job-related injury in 2009.  As a result of the 2009 incident, in which Lieutenant suffered a torn rotator cuff in his right shoulder and pain in his right low back and right hip, he lost the ability to walk, and he never returned to work.

The Appellate Division noted that although Lieutenant’s previous injuries may have had resulted in some low level symptoms that he had learned to manage, there is no dispute that Lieutenant was not incapacitated prior to the 2009 incident. Although the System’s expert characterized the exacerbation of Lieutenant's underlying conditions after that point as temporary, he could not explain why Lieutenant's conceded disability had not resolved as of the date of the hearing, 3½ years after the accident.

Under these circumstances, said the court, the Comptroller's determination is not supported by substantial evidence and must be annulled.

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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.

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