In seeking to vacate an arbitration award, the moving party must set out the grounds relied upon for setting the award aside

In seeking to vacate an arbitration award, the moving party must set out the grounds relied upon for setting the award aside

2014 NY Slip Op 04451, Appellate Division, First Department

The arbitrator had found the employee [Petitioner] guilty of certain disciplinary charges and had imposed the penalty of a thirty-day suspension without pay. A few months later Petitioner was again served with a notice of discipline and the arbitrator, finding Petitioner guilty of misconduct,  terminated his employmentt.

Petitioner appealed. Supreme Court dismissed his Article 75 petitions seeking to vacate the arbitration awards, which decisions the Appellate Division affirmed.

The Appellate Division explained that Petitioner failed to argue, “let alone set forth, any of the grounds for setting aside an arbitration award.” Further, said the court, Petitioner did not allege an statutory basis for vacating the award such as corruption, fraud or misconduct in procuring the award or partiality of the arbitrators, nor did he allege that the arbitrators exceeded their power, failed to follow the procedure set forth in CPLR Article 75, or that the award is irrational or violates public policy."

In the view of the Appellate Division, “Petitioners' allegations amount to nothing more than a claim that the arbitrators made errors of fact or law which, even if true, does not warrant vacatur of the awards.”

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 25, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 25, 2014

Click on text highlighted in color  to access the full report

 

Town of Berne – Procurement (Albany County)
The town board has adopted comprehensive procurement policies and procedures that provide guidance as to when items must be competitively bid and when written or verbal quotes should be obtained for purchases not required to be bid. Town officials review and update these policies annually to ensure they provide guidance for officials and employees to follow when bidding is not required by law.

Town of Broadalbin – Leave Accruals (Fulton County)
The town has not established a system to ensure that leave accruals earned and used by highway department employees are properly accounted for. Employees maintain their own leave records, including leave balances and recording leave time used and earned, without oversight and independent verification by town officials.

Lakeview Public Library – Tuition Reimbursement and Procurement (Nassau County)
The library did not use competitive methods when procuring goods and services that were not subject to competitive bidding. The board’s adopted purchasing policy did not require officials to solicit competitive proposals prior to engaging the services of professional service providers. In addition, the board did not properly authorize all tuition reimbursements paid to the director.

Village of North Syracuse – Claims Audit (Onondaga County)
The board needs to improve internal controls over the claims audit process. Although the clerk-treasurer reviews each individual claim on the abstracts, the board reviews and approves the abstracts without reviewing the actual claims.

Town of Thurston – Financial Condition (Steuben County)
The board did not adopt structurally balanced budgets or consistently monitor the budget. As a result, the general fund reported a deficit unexpended fund balance of $18,343 on Dec. 31, 2012. Although fund balance increased to approximately $9,000 in 2013, this amount is insufficient to cover unexpected expenses.

Town of Willsboro – Internal Controls Over Selected Financial Operations (Essex County)
The town clerk did not maintain adequate, accurate and complete records and reports. In addition, collections for clerk fees and real property taxes were not physically secured prior to deposit, were not deposited timely and intact and were not remitted to the appropriate party timely or in the appropriate amounts. Auditors also found that the board did not audit the records of the clerk as required.

York Fire Department – Controls Over Financial Activities (Livingston County)
The board did not adopt financial policies and procedures addressing cash receipts and disbursements, procurement, or claims processing and review, and has not adopted a written code of ethics. Further, the board did not require the treasurer to provide it with adequate monthly reports that included receipt, asset and liability information.

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A two-month suspension without pay rather than termination ruled the appropriate penalty in view of employee's 29 years of service and her previously unblemished work record

A two-month suspension without pay rather than termination ruled the appropriate penalty in view of employee's 29 years of service and her previously unblemished work record

2014 NY Slip Op 04660, Appellate Division, Fourth Department

A senior account clerk-typist [Petitioner] was charged with incompetence and misconduct in the performance of her duties. The hearing officer sustained one of the three specifications of incompetence and one of the two specifications of misconduct and recommended that Petitioner be placed on “an employee improvement plan” in lieu of discipline. The appointing authority adopted the findings of the hearing officer and sustained an additional specification of incompetence. It then imposed the penalty of termination and dismissed the Petitioner.

After reviewing all of the disciplinary charges and specifications filed against the employee, the Appellate Division said that it was “left with two specifications of incompetence, i.e., failure to bill for services in a timely manner and failure to deposit cash and checks in a timely manner.”

The Appellate Division said that the appointing authority acknowledged that Petitioner did not misuse or misappropriate any of the funds at issue, and there was no evidence that the employer had lost revenue or otherwise suffered financial harm as a result of Petitioner's delay in processing invoices or preparing funds for deposit. Further, said the court, the record showed that there were several factors beyond Petitioner's control that contributed to the delays and the appointing authority conceded that there were no rules, regulations, or written policies with respect to the timing of invoices or deposits, and Petitioner's direct supervisor testified that he never directed Petitioner to send out invoices or prepare funds for deposit within a particular period of time.*

The court noted that although there was a six-month period during which Petitioner failed to prepare any invoices, the record reflects that Petitioner was ill and intermittently absent from work during several of those months, that no one performed Petitioner's duties during her absence, and that several of Petitioner's completed invoices were inadvertently deleted by the employer’s informational technology department.

Accordingly, the Appellate Division “unanimously modified on the law” the appointing officer’s determination part of the determination and vacated the penalty of termination imposed by the appointing authority.

The court concluded that the penalty of termination is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness," citing Matter of Pell, 34 NY2d 222.  233; see Johnson, 281 AD2d at 895). It then explained that "[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally.”

In our view, said the Appellate Division, “the penalty of termination is particularly unfair in light of Petitioner's long service to the City and her previously unblemished work record,” noting that prior to the initiation of this disciplinary action Petitioner had worked for the City for 29 years and had never been disciplined, threatened with discipline, or counseled with respect to her job performance.

Under the circumstances, the Appellate Division concluded that "the maximum penalty supported by the record" is a two-month period of suspension without pay.

* The court noted that although there was a six-month period during which Petitioner failed to prepare any invoices, the record reflects that Petitioner was ill and intermittently absent from work during several of those months, that no one performed Petitioner's duties during her absence, and that several of Petitioner's completed invoices were inadvertently deleted by the employer’s informational technology department.

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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.