Insubordination, neglect of duty, and unbecoming conduct

Insubordination, neglect of duty, and unbecoming conduct

OATH Index No. 1372/14

A respiratory therapist [RT] was charged with insubordination, neglect of duty, and unbecoming conduct. OATH Administrative Law Judge Faye Lewis found that RT neglected his duty by failing to answer multiple telephone calls from the emergency room relating to a trauma patient and failing to respond to the emergency room in a timely manner. 

However, the appointing authority did not establish that RT was insubordinate or that he engaged in unbecoming conduct by initiating an argument with staff. Penalty recommended was a 60-day suspension without pay.

The decision is posted on the Internet at: http://archive.citylaw.org/oath/11_Cases/14-1372.pdf

Failure to name necessary parties required the dismissal of an appeal to the Commissioner of Education

Failure to name necessary parties required the dismissal of an appeal to the Commissioner of Education

Decisions of the Commissioner of Education, Decision No. 16,607

This appeal concerned the school district’s alleged failure to recall an individual whose name appeared on the relevant preferred eligible list who claimed to have greater seniority that those reinstated from the preferred list.

It is instructive in that it again illustrates the critical need to join necessary parties, a party whose rights would be adversely affected by a determination of an appeal in favor of a Petitioner.

Further, joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

In this instance, said the Commissioner, if the Petitioner’s request for relief were granted, the rights of the three duly certified teachers earlier appointed, each of whom allegedly had less seniority in the relevant tenure area than Petitioner, could be adversely affected, thus making those teachers necessary parties to this action.

As Petitioner failed to name and serve these individuals, the Commissioner dismissed Petitioner’s appeal.

The Commissioner also noted that that Petitioner had named the superintendent in the petition. However, there was no evidence in the record that the superintendent was personally served and thus Petitioner’s claims against the superintendent were also be dismissed for lack of personal service.

As to Petitioner request attorney fees and reimbursement for the costs and disbursements of this proceeding, the Commissioner noted that there was no statutory authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310.

A court will confirm an arbitration award unless it finds the award irrational or violates public policy, or exceeds a specifically enumerated limitation on the arbitrator's power

A court will confirm an arbitration award unless it finds the award irrational or it violates strong public policy, or it exceeds a specifically enumerated limitation on the arbitrator's power

Professional Firefighters Assn. of Nassau County v Village of Garden City, 2014 NY Slip Op 05343, Appellate Division, Second Department

The Village Garden City assigned volunteer firefighters to operated “first line” equipment rather than to paid firefighters represented by the Professional Firefighters Association of Nassau County. The Association grieved the Village’s action and the arbitrator held that the Village had violated the relevant collective bargaining agreement by assigning the operation of first line equipment to volunteer firefighters.

When the Association filed an Article 75 petition seeking to confirm the award, the Village moved to vacate the arbitrator’s decision. Supreme Court vacated the arbitrator’s award and the Association appealed.

The Appellate Division reversed the Supreme Court order on the law, with costs, confirming the arbitration award is granted. The court explained that arbitration decisions are entitled to deference from the courts and will not be disturbed unless they are irrational, violate public policy, or exceed a specifically enumerated limitation on the arbitrator's power.

Rejecting the Village’s argument to the contrary, the Appellate Division said that “challenged arbitration award did not exceed a specifically enumerated limitation on the arbitrator's power.’  Rather, said the court, the arbitrator acted within her broad authority under the collective bargaining agreement by relying upon the prior agreements and past practices of the parties in interpreting the provisions of the agreement, and in determining that the Village violated it by assigning the operation of first line equipment to volunteer firefighters rather than to paid firefighters represented by the [Association].

As the arbitrator's award was neither irrational nor violative of public policy, the Appellate Division held that Supreme Court erred in denying that branch of the petition which was to confirm the award and in granting the Village's motion to vacate it.

The New York City Metropolitan Transportation Authority is seeking applicants for the position of Deputy General Counsel – Employment

The New York City Metropolitan Transportation Authority is seeking applicants for the position of Deputy General Counsel – Employment

The Deputy General Counsel – Employment reports to the General Counsel and serves as the Metropolitan Transportation Authority’s senior in-house employment law expert.

Duties include managing the employment functions of the MTA Headquarters Legal Department; representing the MTA in litigation and administrative matters before federal and state courts and various administrative agencies, including the Equal Employment Opportunity Commission, State Division of Human Rights and State Public Employment Relations Board, providing day-to-day legal advice and counsel to MTA's Human Resources and Labor Relations Departments and Department of Diversity and Civil Rights regarding employment, employment discrimination and labor issues and for developing policies and procedures in those areas.

Other duties include:

■ Coordinating with the MTA's subsidiary and affiliated agencies' law departments, equal employment opportunity specialists and human resources managers concerning certain all-agency policies and initiatives in the labor and employment areas;

■ Advising MTA and its agencies on issues involving Title VI, environmental justice, equal employment opportunity, personal privacy protections (including HIPAA), MTA's disadvantaged, minority and women-owned business enterprise ("DMWBE") programs, Paratransit and ADA station accessibility matters;

■ Coordinating reporting by the MTA and its agencies to MTA's Board and to federal and state regulatory authorities, including the Federal Transit Administration concerning Title VI, equal employment opportunity and MTA's DMWBE programs;

■ Advising MTA management concerning the legal risks related to employment practices to protect MTA's interests; and

■ Supporting the General Counsel in the performance of his accountabilities by providing him with legal and policy advice representing the MTA in complex and sensitive special assignments as requested by the General Counsel..

The Deputy General Counsel – Employment will be expected to provide guidance, advice, and general supervision to assistant and, or, associate counsels.

Additional information concerning this position is posted on MTA's Internet Careers page.

Interested attorneys may submit their “online application” form by clicking on the “APPLY NOW” button from either the MTA’s CAREERS page or from the JOB DESCRIPTION page, which can be found at:

https://erecruit.mtabsc.info/psc/ERPRD/EMPLOYEE/HRMS/c/HRS_HRAM.HRS_CE.GBL?&PAGE=HRS_CE_HM_PRE

under MTA Headquarters jobs. 

If you have previously applied on line for other MTA positions, enter your User Name and Password.  If it is your first registration, click on the CLICK HERE TO REGISTER hyperlink and enter a User Name and Password; then click on the REGISTER button.
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Termination during a disciplinary probation period

Termination during a disciplinary probation period

2014 NY Slip Op 05347, Appellate Division, Second Department

An employee [Petitioner] filed an Article 78 petition challenging the appointing authority's summarily terminating him from his position.

Earlier Petitioner, a Safety and Security Officer, was served with a notice of discipline alleging that he was guilty of misconduct when, among other things, he failed to properly activate the emergency medical system. Petitioner and the appointing authority then entered into a disciplinary settlement agreement that provided Petitioner would serve a one-year disciplinary evaluation period during which time the appointing authority could terminate his employment should he commit any act that was the same as, or similar to, the acts underlying the charges cited in the notice of discipline.

During the “disciplinary evaluation period” Petitioner was sent a letter of termination in which the appointing authority stated that “Petitioner failed to respond appropriately to an emergency situation.”

The Appellate Division, noting that “The disciplinary settlement agreement entered into by the parties constituted a valid, binding contract,” dismissed Petitioner’s action.

The court explained that under the terms of this agreement, the Petitioner would be permitted to continue his employment notwithstanding the prior notice of discipline and he, in turn, agreed to the termination of his employment during the disciplinary evaluation period for any act that was deemed to be the same as or similar to the acts underlying the charges cited in the notice of discipline.

Petitioner, in agreeing to the terms set out in the disciplinary settlement agreement, absent bad faith on the part of the appointing authority, waived any right he may have had under the operative collective bargaining agreement to a review of the appointing authority’s decision to terminate his employment “for acts the same as or similar to his prior alleged misconduct.”

Finding that the appointing authority’s decision to terminate his employment was rationally based and thus was not arbitrary and capricious, in the absence of Petitioner demonstrating that his termination was carried out in bad faith or illegally accomplished, the Appellate Division sustained Petitioner's being summarily removal from his position

Further, said the court, Petitioner failed to raise an issue of fact sufficient to warrant a hearing as otherwise provided pursuant to §7804(h) of the Civil Practice Law and Rules [CPLR].

In contrast, in Taylor v Cass, 122 A.D.2d 885, a County employee won reinstatement with full retroactive salary and contract benefits because the court determined that he was improperly dismissed while serving a disciplinary probation period. The terms of Taylor’s probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” at any time during his disciplinary probationary period. Taylor was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.”

The Appellate Division ruled that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement agreement: intoxication on the job.

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