The State Constitution’s prohibition of gifts of public funds is not necessarily applicable in situations involving labor-management relations between public employees and public employers under the Taylor Law

The State Constitution’s prohibition of gifts of public funds is not necessarily applicable in situations involving labor-management relations between public employees and public employers under the Taylor Law

2015 NY Slip Op 03837, Appellate Division, Second Department

Introducing its decision in this appeal with the statement "Judicial review of an arbitrator's award is extremely limited," the Appellate Division explained that "A party seeking to overturn an arbitration award on one or more grounds stated in CPLR 7511(b)(1) bears a heavy burden, and must establish a ground for vacatur by clear and convincing evidence."*

In this action, Nassau County, the Appellant, asked Supreme Court to vacate an adverse arbitration award on the grounds that the award was against public policy. Supreme Court denied the County's motion and confirmed the arbitrator’s decision against the County, sustaining the arbitrator's award of $27,049.20 against Nassau.

The Appellate Division subsequently rejected the County’s appeal of the Supreme Court's ruling.

The court said that an arbitration award violates public policy “only where a court can conclude, without engaging in any extended fact-finding or legal analysis, that a law prohibits the particular matters to be decided by arbitration, or where the award itself violates a well-defined constitutional, statutory, or common law of this state," citing Reddy v Schaffer, 123 AD3d 935.

Addressing Nassau County's argument that the payment of public funds as damages for its breach of a contractual obligation under a collective bargaining agreement was prohibited by Article VIII, §1, of the New York State Constitution,** the Appellate Division rejected the County’s theory, citing Gagliardo v Dinkins, 89 NY2d 62.

In Gagliardo the Court of Appeals said “the constitutional prohibition on gifts of public funds is not necessarily subject to statutory definitions of terms or conditions of employment for purposes of governing labor-management relations between civil service employees and public or governmental employers under the Taylor Law.”

Finally, the Appellate Division found that the challenged arbitration award did not exceed a specifically enumerated limitation on the arbitrator's power, rejecting Nassau County’s argument to the contrary.

Accordingly, said the Appellate Division, Supreme Court properly denied the County’s petition to vacate the arbitration award and properly confirmed the award, entering judgment against Nassau in the principal sum of $27,049.20.

* Essentially, an arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeded his or her power; or (4) the failure to follow the procedures of CPLR Article 75. In addition, an arbitration award may be vacated pursuant to CPLR §7511(b)(1)(iii) where "an arbitrator . . . exceeded his or her power," which includes those circumstances in which the award "violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

** Article VIII, 1, prohibits, in pertinent part, the making of a gift of public monies.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03837.htm

A claim that an employee organization has breached its duty of fair representation must be timely raised by the aggrieved individual

A claim that an employee organization has breached its duty of fair representation must be timely raised by the aggrieved individual
2015 NY Slip Op 03810, Appellate Division, Second Department

An employee organization’s duty of fair representation is the legal duty requiring the employee organization to represent every employee in the negotiating unit in good faith,  regardless of whether the employee is a member of the employee organization or not.

In Cox v Subway Surface Supervisors Association, et al., 69 AD3d 438, the Appellate Division noted that [1] the individual must be in the negotiating unit represented by the employee organization’s when the alleged breach of the employee organization’s duty of fair representation is alleged to have occurred;* and [2] the fact that the individual disagrees with the employee organization’s action or negotiating position does not, without more, constitute proof of the employee organization’s failure of its duty of fair representation.

In any event, a claim that the employee organization had breached its duty of fair representation must be timely filed.

In this action an arbitrator confirmed the decision to terminate the plaintiff's [Plaintiff] employment on October 10, 2008. The employee organization allegedly notified the Plaintiff or about on October 10, 2008 that it would not appeal the arbitrator's determination. 

Supreme Court found that the employee organization had demonstrated that the Plaintiff did not commence this action until 2010, significantly more than four months after Plaintiff’s claim for the alleged breach of the duty of fair representation accrued. Accordingly, Supreme Court dismissed Plaintiff’s petition as time-barred.

The Appellate Division affirmed the lower court’s determination, explaining that the employee organization had met its prima facie burden by establishing that the cause of action alleging that it breached its duty of fair representation was untimely and that  Plaintiff had failed to raise a triable issue of fact. 

Citing Guggenheimer v Ginzburg, 43 NY2d 268, the court further ruled that Supreme Court had  also properly granted that branch of the employee organization’s motion to dismiss Plaintiff’s amended complaint seeking to recover damages for discrimination "for failure to state a cause of action pursuant to CPLR 3211(a)(7)."

* To the same end, in Burnham and UFT, 28 PERB 4590, PERB ruled that the union's "duty of fair representation" runs only to employees; there is no such duty with respect to former unit members such as retirees. However, in Baker v Irondequoit CSD, 70 NY2d 314, the Court of Appeals held that a union's duty to process a former employee's grievance, under some circumstances, survives the employee's separation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03810.htm

The Doctrine of Equitable Estoppel will not be applied where the individual had sufficient knowledge to bring a timely action

The Doctrine of Equitable Estoppel will not be applied where the individual had sufficient knowledge to bring a timely action

2015 NY Slip Op 04050, Appellate Division, First Department

Supreme Court dismissed the employee’s petition [Petitioner] seeking to annul the appointing authority’s termination of her employment as untimely.The Appellate Division affirmed the lower court’s ruling explaining that the appointing authority had made its “final determination” on March 7, 2011 and Petitioner had not made her demand for arbitration until after the expiration of the four-month statute of limitations.

The court cited Joseph Francese, Inc. v Enlarged City School Dist. of Troy, 95 NY2d 59. In Francese the Court of Appeals ruled that where the individual served a demand for arbitration within the applicable statute of limitations, the running of the Statute of Limitations is tolled.

The relevant statute, CPLR 204 (b), provides that “Where it shall have been determined that a party is not obligated to submit a claim to arbitration, the time which elapsed between the demand for arbitration and the final determination that there is no obligation to arbitrate is not a part of the time within which an action upon such claim must be commenced.”  

In addition Petitioner had contended that the doctrine of equitable estoppel should be applied to toll the period between Petitioner's termination and her demand for arbitration.

The Appellate Division disagreed, noting that the record indicated that Petitioner “knew or should have known of the proper mechanisms to challenge the appointing authority’s decision before the expiration of the statute of limitations.” As the Court of Appeals held in Zumpano v Quinn, 6 NY3d 666, “equitable estoppel did not apply where the plaintiff had sufficient knowledge to bring a timely action.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04050.htm

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

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

Click on text highlighted in color to access the full report

Comptroller Di Napoli releases municipal audit reports for:

Carthage-West Carthage Water Pollution Control Facility

Both the clerk-treasurer and her deputy were able to perform all cash disbursement functions and have full access rights to record financial transactions in the accounting system with no oversight. Facility officials did not review bank reconciliations and bank statements and a comparison of canceled check images and online payments with approved abstracts.

http://www.osc.state.ny.us/localgov/audits/jointacts/2015/carthagewestcarthage.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release

City of Long Beach

The significant revenue and expenditure projections in the proposed budget appear reasonable. The proposed budget, however, includes revenue related to the sale of real property and federal aid which may not be realized. In addition, appropriations for overtime may not be sufficient. Finally, metered water sales and sewer rents include a 2 percent rate increase which has not yet been adopted by the city council. The city’s proposed budget complies with the property tax levy limit. 

http://www.osc.state.ny.us/localgov/audits/cities/2015/longbeach_br.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release
 

Oneida Public Library District

The board did not audit each claim before payment or provide oversight of disbursements related to the district’s line of credit, payroll or petty cash. Additionally, no district official reviewed the processed payroll reports before disbursing payroll checks.

http://www.osc.state.ny.us/localgov/audits/libraries/2015/oneida.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release

Village of Quogue

The justices did not ensure that court moneys were accounted for. The court did not properly prepare bank reconciliations or prepare an accountability analysis, resulting in excess funds in bail and fee accounts which could not be accounted for.

http://www.osc.state.ny.us/localgov/audits/villages/2015/quoguejc.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release

and the

Shelby Volunteer Fire Company

The board does not ensure that all financial activity is properly recorded and reported and that money is properly accounted for. In addition, between April and November 2013, the fire company paid $10,714 to a vendor that was owned by the company president. 

 http://www.osc.state.ny.us/localgov/audits/firedists/2015/shelby.pdf?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051315release 


Comptroller and Attorney General report former Executive Director of a nonprofit organization sentenced
State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman jointly announced that David Cohen, former executive director of the Metropolitan Council on Jewish Poverty (Met Council), has been sentenced to one year in jail. Cohen has also paid $650,000 in restitution to the Met Council. The joint investigation revealed that Cohen, together with former Met Council CEO William Rapfogel and other co-conspirators, stole approximately $9 million from the taxpayer-funded nonprofit organization as part of a 20-year grand larceny and kickback scheme. Cohen personally stole approximately $650,000 from the Met Council.

http://www.osc.state.ny.us/press/releases/may15/051115.htm?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051115release 

Audit of Empire State Development Corporation reveals advertising contract produced few “tangible results”
The Empire State Development Corporation (ESDC) spent $211 million on an advertising contract to promote economic development and tourism in New York state with no tangible results, according to an audit released by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/may15/051115a.htm?utm_source=weeklynews20150517&utm_medium=email&utm_campaign=051115arelease

Loss of the license or other certification required for the performance of the duties of the position typically results in the termination of the individual’s employment

Loss of the license or other certification required for the performance of the duties of the position typically results in the termination of the individual’s employment
2015 NY Slip Op 04182, Appellate Division, Third Department

Although the loss of the license or the certification required to perform the duties of the position typically results in the termination of the individual’s employment, the courts have held that a termination for inability to produce proof of possession of a required license, permit or certificate is not a dismissal in the nature of discipline.*

However, an individual dismissed because he or she is unable to produce the required credentials to lawfully perform the duties of his or her position may also suffer another consequences following his or her termination - the Unemployment Insurance Appeal Board may determine that the Claimant was disqualified from receiving unemployment insurance benefits because he or she had  voluntarily left his or her employment “without good cause.”

In this instance Claimant had been employed as a full time heavy equipment operator by a municipality's highway department for more than four years . One of the conditions of his employment was that he maintain a valid commercial driver's license (CDL).

In the course of a traffic stop, Claimant “refused to submit to a breathalyzer test” and his CDL was automatically suspended as a result.

Although there was some discussion about Claimant’s continuing to work for the highway department as a laborer on a part-time basis, this did not occur and Claimant was unable to return to his job as a heavy equipment operator as a result of his CDL being suspended.

Claimant then applied for unemployment insurance benefits. Although Claimant’s application for unemployment insurance benefits was initially denied, on appeal an Administrative Law Judge ruled that Claimant was allowed to receive benefits. The Unemployment Insurance Appeal Board [Board], however, subsequently reversed this decision, concluding that Claimant was disqualified from receiving benefits because he had provoked his discharge.

Claimant appealed but the Appellate Division sustained the Board’s ruling. 

Citing Matter of Ramirez [Commissioner of Labor], 84 AD3d 1656 and other decisions, the court explained that applicants for unemployment insurance benefits “who have undertaken voluntary actions that have resulted in the forfeiture of their valid CDLs, a necessary condition of employment,” have been held to have provoked their discharge thereby disqualifying them from receiving unemployment insurance benefits.**

Rejecting Claimant’s argument to the contrary, the Appellate Division said that the appointing authority “was not obligated to offer [Claimant] a part-time position as a laborer,” following his termination from his heavy equipment operator position, citing Matter of Ramirez [Commissioner of Labor], 84 AD3d at 1657.

* See, for example, Matter of Cravatta v New York State Dept. of Transp., 77 AD3d 1399; Matter of Carr v New York State Dept. of Transp., 70 AD3d 1110.

** An applicant for unemployment insurance benefits who has left his or her position “without good cause” is typically held ineligible for such benefits. [See Hawkins v Commissioner of Labor, 71 AD3d 1215}.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04182.htm