Elements considered by courts in evaluating the results of an arbitration

Elements considered by courts in evaluating the results of an arbitration

2015 NY Slip Op 00444, Appellate Division, First Department

In response to a challenge to an arbitration award where the penalty imposed was termination, Supreme Court denied the Article 75 petition seeking to vacate and arbitration award

The Appellate Division affirmed the Supreme Court’s ruling, noting the following elements concerning the arbitration:

1. The selection of the Hearing Officer comported with the law, in this instance Education Law §3020-a[3][b][ii]).

2. The record showed that the individual “had an adequate opportunity to prepare for the hearing” in that he was sent the notice of charges and specifications approximately a month before the hearing and had “retained counsel over a week before the hearing.”

3. The specifications sufficiently apprised the individual of the charges against him, including the bases for the charges and listed specific dates that corresponded to numerous observation reports and letters in the individual’s personnel file.

4. The individual was able to mount a defense, called witnesses and his counsel had the opportunity to examine or cross-examine every witness.

5. There was no basis to disturb the Hearing Officer's credibility findings in favor of the Department of Education's witnesses

6. The Hearing Officer's determination was in accord with due process, rational, and supported by adequate evidence

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 16, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending January 16, 2015

Click on text highlighted in color  to access the full report
New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of the:

Clark Mills Fire District,

Village of Clinton,

Elba Fire Department,

Village of Ellenville,

Village of Harriman,

Hughsonville Fire Company,

Village of Livonia,

Plattekill #1 Fire District, and the

Town of Schroeppel.

Journalists who cover the law may apply for Loyola Law School’s four-day Civil Justice Fellowship Program

Journalists who cover the law may apply for Loyola Law School’s four-day Civil Justice Fellowship Program

The Civil Justice Program at Loyola Law School, Los Angeles will host its 10th-annual Journalist Law School from Wednesday, May 27 through Saturday, May 30, 2015 on its Frank Gehry-designed campus in downtown Los Angeles. 

There is no cost to journalists to attend the Fellowship program. Instruction, lodging and most meals are included. The Journalist Law School will also cover half of travel expenses up to $300. Fellows will be housed at the nearby Hilton Checkers Los Angeles.  

The Fellowship program condenses core law-school subjects and break-out topics into a long weekend filled with courses taught by Loyola Law School faculty, practicing attorneys and judges. Journalists with at least three years of experience who cover the law in some fashion are encouraged to apply. Journalist fellows, who are competitively selected, receive a certificate of completion at the end of the four-day program. JLS alumni include almost 350 reporters, editors and producers from a wide range of local, national and international news organizations.

The application deadline is Monday, Feb. 16. The application and details are available at www.journalistlawschool.org.

Questions about the program may be directed to Brian Costello, Esq.at brian.costello@lls.edu or 213-736-1444.

Claims for pay resulting from a suspension without pay in excess of 30 days in connection with disciplinary action taken pursuant to Civil Service Law §75 can be resolved independently of the disciplinary proceeding

Claims for pay resulting from a suspension without pay in excess of 30 days in connection with disciplinary action taken pursuant to Civil Service Law §75 can be resolved independently of the disciplinary proceeding
Rea v City of Kingston, 2014 NY Slip Op 09079, Appellate Division, Third Department

Supreme Court, Ulster County, directed the City of Kingston to reinstate Christopher Rea to his position as Assistant Fire Chief for respondent City of Kingston with an award of retroactive back pay. The City appealed.

As indicated in a prior decision in this matter (Matter of Rea v City of Kingston, 110 AD3d 1227 [2013]), Rea was promoted from Assistant Fire Chief to Fire Chief of the City of Kingston Fire Department in January 2012. His appointment was rescinded and he was suspended without pay pending disciplinary charges. Disciplinary charges were eventually served on Rea alleging multiple specifications of misconduct, most of which pertained to time and leave issues, in August 2012.

The Appellate Division held that, consistent with the provisions of Civil Service Law §75(3),* Rea was "presumptively entitled to receive his regular compensation as Assistant Fire Chief" pending resolution of the disciplinary charges lodged against him” but that "the issue of compensation [could not] be definitively resolved on [the existing] record as [the City] contend[ed] that some [of the] delays [incurred] were either attributable solely to [Rea] or reflect[ed] periods waived by{REA]" and the matter was remitted the matter to Supreme Court "for further development of the record as to the issue of retroactive pay."

Supreme Court directed that the City conduct the disciplinary hearing within 30 days of the court's order to that effect and, notwithstanding certain unresolved factual issues, ordered the City to reinstate Rea to his position as Assistant Fire Chief with full pay and benefits, and without any offset, retroactive to March 10, 2012. Supreme Court also directed that, to the extent that City wished to pursue its claim for an offset, it could do so in the context of a separate action for recoupment.

In response the City’s appeal, the Appellate Division reversed so much the Supreme Court’s order that awarded Rea immediate back pay and benefits retroactive to March 10, 2012 and directed that City pursue any claim for an offset in a separate action, explaining that because the issue of retroactive pay could be resolved independently of Rea's disciplinary proceeding, "it should not serve as a basis for any further delay in holding the [subject] disciplinary hearing".

The decision also noted that Counsel for the City, in the course of oral argument, stated that the underlying disciplinary hearing was completed and that “the appointing authority, in turn, found [Rea] guilty of numerous specifications of misconduct and recommended that he be terminated from his employment.” Absent an appeal from this adverse disciplinary determination, presumably the only unresolved issue is the amount of back pay and benefits due Rea.

* Civil Service Law §75(3) provides for suspension pending determination of disciplinary charges and, in pertinent part, provides that “Pending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days.”

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2014/2014_09079.htm

The two-prong test used by the court to determine "whether a grievance is arbitrable"

The two-prong test used by the court to determine "whether a grievance is arbitrable"

In the Matter of arbitration between County of Herkimer v Civil Serv. Employees Assn., Inc., 2015 NY Slip Op 00125, Appellate Division, Fourth Department

A probation officer employed by Herkimer County, John Hight, applied for a promotion to the position of probation supervisor. The position of probation officer was included in the relevant collective bargaining agreement (CBA) but the position of probation supervisor was not so included. Herkimer promoted another, less senior, employee, although Hight scored higher on the promotional examination than the employee selected for the promotion.

CSEA filed a grievance objecting the promotion of the less senior employee selected. Herkimer denied the grievance on the ground that the position to which Hight sought to be promoted “was not encompassed by the CBA” and CSEA demanded that the matter be submitted to arbitration.

Herkimer then filed a petition pursuant to CPLR Article 75 seeking a court order staying arbitration. Supreme Court granted Herkimer’s petition and denied CSEA’s motion to compel arbitration. CSEA appealed.

The Appellate Division said that resolution of the issue before it was governed by two-prong test set by the Court of Appeals to be used to determine "whether a grievance is arbitrable" in Matter of City of Johnstown [Johnstown Police Benevolent Assn., 99 NY2d 273.*

The first prong of the test, frequently referred to as "the may-they-arbitrate' prong," concerns whether there is any statutory, constitutional or public policy prohibition against the arbitration of the grievance. If the court determines that arbitration is not so prohibited, it then applies the second prong of the test: does the CBA indicate that the parties have agreed to arbitrate the dispute at issue," -- the so-called “did-they-agree-to-arbitrate' prong."

As Herkimer did not contend that there was any statutory, constitutional or public policy prohibition against the arbitration of the grievance at issue, the Appellate Division said that it was concerned only with the application of the second prong of the Johnstown test.

The Appellate Division held that Supreme Court erred in concluding that the parties did not agree to arbitrate the subject matter giving rise to the grievance, explaining that "Where, as here, there is a broad arbitration clause and a reasonable relationship' between the subject matter of the dispute and the general subject matter of the parties' collective bargaining agreement, the court should rule the matter arbitrable, and the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [collective bargaining agreement], and whether the subject matter of the dispute fits within them."

Finding that such a reasonable relationship exists between the subject matter of the grievance, i.e., promotion procedures, and the general subject matter of the CBA, the Appellate Division ruled that "it is for the arbitrator to determine whether the subject matter of the dispute falls within the scope of the arbitration provisions of the [CBA]."

Should the arbitrator determine that the parties agreed to arbitrate the subject matter giving rise to the grievance, he or she will then proceed to consider the merits of the contentions of the parties.

* See also and in the Matter of Acting Supt. of Schs. of Liverpool Cent. Sch. Dist. (United Liverpool Faculty Assn.), 42 NY2d 509.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00125.htm