A "global settlement contract" that, among other things, settled the underlying grievance renders the appeal pending before the court moot

A "global settlement contract" that, among other things, settled the underlying grievance renders the appeal pending before the court moot
2015 NY Slip Op 519109, Appellate Division, Third Department

A deputy sheriff injured his back during a foot pursuit in the course of his employment and received full pay for eight days of missed work immediately after the incident pursuant to General Municipal Law §207-c, as well as intermittent days during the next several months but ultimately was told that his benefits pursuant to General Municipal Law §207-c had been terminated. The deputy’s union filed a grievance on behalf of the deputy "and all similarly situated uni[on] members," charging a violation of the collective bargaining agreement between union and the County and demanded that the matter be submitted to arbitration.

The County filed a petition pursuant to CPLR §7503(b) seeking a stay of arbitration. Supreme Court granted the County’s application and the union appealed. While this appeal was pending before the Appellate Division, the deputy sheriff and union entered into a "global settlement contract" that, among other things, settled the deputy’s General Municipal Law §207-c claim, whereupon the County contended the appeal was moot and sought to have the appeal dismissed.

The Appellate Division agreed with the County that the “global settlement contract” rendered the union’s appeal moot, explaining that “In the absence of an exception to the mootness doctrine — that is, where an issue is likely to recur, presents novel or significant questions, or typically evades appellate review — ‘an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment.’"

In so ruling, the Appellate Division said that it was “unpersuaded by [the union’s] contention that it was not a party to the settlement and that similarly situated employees represented by [the union] would be affected by the outcome of this appeal.”

The court pointed out that the parties "are now operating under the terms of an expired contract, limiting the potential for similar disputes in the future." Further, said the Appellate Division, the union “participated in the grievance procedures that led to the settlement, and by means of its counsel's representation of both [the union] and the deputy throughout the proceedings, may also have been apprised of the terms of the agreement that ‘fully, finally and globally’ settled the claim.

Dismissing the union’s appeal, the Appellate Division ruled that the settlement contract contained no provisions reserving any issues for appeal and the record was devoid of any indication that there are similarly situated employees who lost benefits available to them pursuant to General Municipal Law §207-c.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_519109.htm

On March 17, 2015 Governor Andrew M. Cuomo announced the following five appointments to his administration.

On March 17, 2015 Governor Andrew M. Cuomo announced the following five appointments to his administration.

Source: Office of the Governor

Seth Agata, Esq., has been nominated to serve as Chairman of the Public Employment Relations Board. Most recently, he served as Counsel to the Governor and, prior, as First Assistant Counsel and Assistant Counsel. Before joining the Governor’s staff, Mr. Agata served as Assistant Secretary for Program and Policy and as Senior Associate Counsel in the Office of Counsel to the Majority for the New York State Assembly. He was also Assistant Counsel Program and Counsel Staff in the Assembly. He served as Counsel for Investigations in the Office of State Comptroller, Assistant District Attorney for Columbia County, a trial examiner in the New York City Office of Collective Bargaining and was in private law practice in New York City and Columbia County. He is a co-author of The History of the New York Court of Appeals, 1932-2003 (Columbia U. Press, 2006) and has written articles on other topics, as well. Mr. Agata graduated from the New York State School of Industrial and Labor Relations at Cornell University as well the Cornell Law School. This nomination requires Senate confirmation.

Michael Weisberg has been appointed Chief Information Security Officer and Deputy Commissioner of Information Technology Services, with a special focus on cyber security. Most recently, Michael was CIO and Director of Information Technology for a consulting firm in Richmond, Virginia. Prior to that, Michael worked at the U.S. Federal Reserve as their Senior Information Security Architect, where he developed and published security architectures and designs, and advised Senior Federal Reserve Officers and management on security technologies and practices. In addition, he was the Vice President for Information Security for Bank of America and served as an Information Security Consultant. He is the Director of the Cyber Security program in the School of Professional and Continuing Education at the Sage Colleges. Mr. Weisberg has a Bachelor of Science from RPI and holds several industry recognized certifications, including Certified Information Systems Security Professional (CISSP) and Certified Scrum Master.

Johannah Chase has been appointed Assistant Secretary for Education. She previously was a consultant at Bank Street College of Education, where she worked with senior leadership on developing their strategic plan. Prior to that, Ms. Chase held a number of roles at the New York City Department of Education, most recently serving as Chief Executive Officer of the Office of Special Education and Chief Operating Officer of the Division of Students with Disabilities and English Learners. She also served as a Senior advisor on special education reform, Chief of Staff of the Division of School Support & Instruction and Associate Director of the Division of School Support & Instruction. She was also an eighth grade English and Math teacher in New York City for three years. Ms. Chase has a B.A from Cornell University and an M.S. in Teaching from Pace University.

Lisa Black has been appointed Director of Intergovernmental Affairs for the Department of Homeland Security and Emergency Services. She previously held a number of roles at the New York City Department of Homeless Services, most recently serving as Assistant Commissioner and, prior, Acting Deputy Commissioner, Director of Government Relations, and Acting Director of Communications and External Affairs. She also held a number of roles working in leadership in the New York State Senate for 14 years. Ms. Black has a B.A. from the College of Saint Rose.

Brian Shea has been appointed Upstate Director of Intergovernmental Affairs for the Department of Homeland Security and Emergency Services. He held a number of roles in the Office of Assemblywoman Donna A. Lupardo. Most recently, he served as Chief of Staff where he oversaw all office operations, legislative initiatives and external communications. Prior to that, he served as Clerk to the Assembly Committee on Children & Families and Legislative Director to the Assemblywoman. Mr. Shea has a B.A. in Political Science from Binghamton University.

The appointing authority rather than the Commissioner of Education determines if a school employee should be subjected to disciplinary action

The appointing authority rather than the Commissioner of Education determines if a school employee should be subjected to disciplinary action

Appeal of L.J., on behalf of his daughter A.J. regarding employee discipline, Decisions of the Commissioner of Education, Decision No. 16,722

The parent-petitioner in this appeal challenged a determination of the superintendent of schools regarding certain alleged conduct toward his daughter by district employees. 

The Commissioner dismissed the appeal for a number of technical reasons but indicated that had the appeal been properly before him “To extent that petitioner seeks my intervention in obtaining an apology, he is in effect asking that I engage in some form of discipline against district staff.”

Citing Appeal of J.K., Decisions of the Commissioner, Decision No. 14,705 and Appeal of Lloyd, Decisions of the Commissioner, Decision No. 14,303, the Commissioner pointed out that it is the board of education that has the authority and responsibility to determine whether disciplinary action against a district employee is warranted, not the Commissioner of Education.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d16722

Dismissed probationary employee has the burden of showing that his or termination was made in bad faith

Dismissed probationary employee has the burden of showing that his or termination was made in bad faith

2015 NY Slip Op 00896, Appellate Division, Second Department

The appointing authority terminated a probationary employee [Individual] and Individual filed a petition in Supreme Court seeking a review of his dismissal from the position. Supreme Court denied the petition and Individual appealed.

The Appellate Division said that "The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."*

In this instance, said the court, Individual failed to satisfy his burden of presenting competent proof that his termination was improper. Further, observed the Appellate Division, “The record demonstrates that the [Individual’s] performance was consistently unsatisfactory despite repeated advice and assistance designed to give him the opportunity to improve, and, thus, that his discharge was not made in bad faith.”

Accordingly, ruled the Appellate Division, Supreme Court properly denied Individual’s CPLR Article 78 petition.

* Courts have ruled that probationers are entitled to notice and hearing if the appointing authority seeks to dismiss the individual during his or her minimum period of probation. In contrast, a probationer may be dismissed without notice and hearing after completing his or her minimum period of probation and prior to the expiration of his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00896.htm

Disciplinary penalty imposed modified in view of individual’s long service with the agency

Disciplinary penalty imposed modified in view of individual’s long service with the agency
2015 NY Slip Op 02008, Appellate Division, First Department

The Appellate Division, First Department, sustained the dismissal of a New York City police officer, [Officer] finding that substantial evidence supported the determination that Officer was guilty of numerous violations demonstrating his inability to conform his conduct to police department regulations.

The court rejected Officer’s contention that the hearing officer improperly relied on hearsay evidence in finding him guilty of engaging in a verbal and physical domestic dispute. Rather, said the court, the hearing officer's determination was based on Officer’s inconsistent statements in that his testimony at the hearing differed from statements he gave during an investigative interview and the hearing officer's credibility findings are entitled to deference.

As to the issue of the hearing officer considering hearsay evidence, the Appellate Division pointed out that “an administrative tribunal can rely upon credible hearsay evidence to reach its determination,” citing Muldrow v NYS Department of Corrections and Community Supervision, 110 AD3d 425.

As to the penalty imposed, termination, which implicitly denied Officer his vested interest to a retirement allowance,* the court held that dismissing Officer from the police force was not shocking to one's sense of fairness, explaining that Officer was brought up on five separate charges based on events that occurred over a three-year period and he was found guilty of nine of the specifications charged following a hearing.

However, Officer’s long service and the fact that he was a decorated officer with eighteen years of service who often received high ratings on department evaluations served as mitigating factors in determining an appropriate penalty to be imposed. Notwithstanding the fact that Officer was previously disciplined for insubordination and placed on "one-year dismissal probation," the Appellate Division said that given Officer’s service and awards the penalty should be modified “solely to the extent of permitting Officer to apply for vested interest retirement benefits.”

* The Administrative Code of the City of New York provides that an employee may forfeit his or her retirement allowance under certain circumstances. For example, Section 13-173.1 of the Administrative Code requires a member of the City’s Employees’ Retirement System to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the member is not "in service" on that date, he or she forfeits his or her retirement benefits. The Court of Appeals addressed the provisions of Section 13-173.1 in Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02008.htm

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