An alleged past practice concerning compensation is not relevant to the parties' contractual rights and responsibilities absent a contractual provision requiring the continuation of the alleged past practices

An alleged past practice concerning compensation is not relevant to the parties' contractual rights and responsibilities absent a contractual provision requiring the continuation of the alleged past practices

Matter of Detectives' Endowment Assn., Inc. of the Police Dept. of the City of N.Y. v City of New York,125 AD3d 475

In this action the Appellate Division considered the viability of grieving an alleged violation of a claimed “past-practice” in the event the subject of the alleged past-practice is reflected in the terms and conditions of the collective bargaining agreement.

Supreme Court had granted the Detectives' Endowment Association’s [Association], petition to annul a determination of New York City Board of Collective Bargaining [Board] denying the Association’s demand for the arbitration of a grievance based on an alleged departed from a past practice related to salaries paid to detectives. Supreme Court annulled the Board’s decision and directed the parties to proceed to arbitration of the grievance.

The Board appealed and the Appellate Division reversed the lower court’s ruling.

The Board had found that the Association’s grievance was not arbitrable due to the lack of a reasonable relationship between the relevant provisions of the collective bargaining agreements and the claim that the New York City Police Department improperly departed from its past practice by paying salaries to detectives that were lower than those paid to officers.

The Appellate Division held that the Board “had a rational basis and was not arbitrary and capricious, citing NYC Dept. of Sanitation v MacDonald, 87 NY2d 650.

Although the Association had argued that its grievance alleged an "inequitable application" of the parties' contracts, thereby satisfying the contractual definition of an arbitrable grievance," the Appellate Division rejected that Association's argument concerning the relationship between the alleged past practice and the relevant provisions in the collective bargaining agreement. 

The court explained that Association’s contention that the contractually provided salary schedule improperly departed from the alleged past practice was not "relevant to the parties' contractual rights and responsibilities" in the absence of any contractual provision requiring or preserving the continuation of past practices as to salaries, citing Chenango Forks CSD v NYS  Public Employment Relations Board, 21 NY2d 255.

Further, said the court, the Association made no claim that the alleged past practice would have been relevant to any other contractual issue, such as the interpretation of an ambiguous provision.”

* The Appellate Division noted that the collective bargaining agreement included an "inequitable application" provision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01183.htm

Courts apply a “two-part” test to determine if a dispute founded on an alleged violation of a collective bargaining agreement is arbitrable

Courts apply a “two-part” test to determine if a dispute founded on an alleged violation of a collective bargaining agreement is arbitrable
Matter of County of Greene (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Greene County Unit 7000, Greene County Local 820), 2015 NY Slip Op 04709, Appellate Division, Third Department

In March 2010 the Green County Civil Service Commission (Commission) adopted a resolution amending its rule governing the probationary term required of new employees to provided that the probationary term shall be a minimum of  8 weeks to a maximum of  52 weeks rather than from a minimum of 8 weeks to a maximum of 26 weeks. The Commission's resolution was approved by the State Civil Service Commission in February 2011.*

In February 2012, Green County (County) and Green County CSEA Unit 7000, Local 820 [CSEA], executed a collective bargaining agreement (CBA) pursuant to Article 14 of the Civil Service Law, the so-called "Taylor Law.". The CBA, in pertinent part, provided that "[a]n employee in the competitive, noncompetitive or labor classes shall be on probation for a period of twenty-six (26) weeks from the date of appointment."**

Subsequently CSEA filed a grievance contending that the County had violated the CBA by requiring unit members to serve a probationary period in excess of the 26 weeks on unit members. In response to the Greene County Administrator’s denial of the grievance on the grounds that the Civil Service Probationary Rules for Greene Countycontrolled. CSEA filed a demand for arbitration. The County then filed a petition pursuant to CPLR 7503 seeking to stay arbitration; CSEA cross-moved to compel arbitration.

Supreme Court granted the County's application and denied CSEA's cross application. CSEA appealed the court’s ruling.

Citing Chautauqua County v CSEA Local 1000, 8 NY3d 513, the Appellate Division said that "The threshold determination of whether a dispute is arbitrable is well settled. Proceeding with a two-part test, we first ask whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance. If no prohibition exists, we then ask whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement. If there is a prohibition, our inquiry ends and an arbitrator cannot act."

The Appellate Division then noted that "[w]hen a county civil service commission, possessing the requisite authority, promulgates a rule establishing the length of a probationary term of service that rule has the effect of law … the public employer and the union cannot negotiate a contrary provision in a CBA.”

The court however, concluded that the provision in the COB did not offend the Commission’s rules, explaining that:

1. The CBA executed by the County and the Union long after the Commission modified the probationary term; and

2. The provision in the CBA “is not inconsistent with the new Commission rule, as the probationary term negotiated by the parties falls squarely within the range promulgated by the Commission.”

As to the first test -- was there a statutory, constitutional or public policy prohibition against arbitration of the grievance -- the Appellate Division said that it discerned “no statutory or public policy bar to arbitration of the grievance in the first instance.”

As to the second test – did the parties actually agreed to arbitrate this particular dispute – the court said that the relevant CBA “contains a broad arbitration clause, which encompasses ‘any claimed violation, misrepresentation or improper application’ of the CBA.” The inclusion of such language, said the Appellate Division, “persuaded [it] that the Union's grievance falls within the scope of disputes that the parties agreed to submit to arbitration.”

The Appellate Division reversed the Supreme Court's order, denying the County's application to stay arbitration and granting the Union's cross application to compel arbitration.

* Civil Service Law §20.2 provides, in pertinent part, that “The rules and any modifications thereof adopted by a county civil service commission or county personnel officer or by a regional civil service commission or regional personnel officer shall be valid and take effect only upon approval of the state civil service commission.”

** This provision in the collective bargaining agreement may prove to be a demonstration of the Doctrine of Unintended Consequences. The CBA language cited in the Appellate Division's opinion provides that a new employee "shall be on probation for a period of twenty-six (26) weeks from the date of appointment." Reading this language narrowly, it could be argued that the minimum period of probation is identical to the maximum period of probation. This would result in the individual having attained "instant tenure" in the position in view of the fact that case law provides that a probationary employee is entitled to "notice and hearing" in the event the appointing authority wishes to terminate the individual during his or her minimum period of probation [see McKee v. Jackson, 152 AD2d 54]. In contrast, a probationary employee may be removed from the position without notice and hearing after completing his or her minimum period of probation and prior to the completion of  his or her maximum period of probation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04709.htm

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The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 448 page e-book. For more information click on
http://thedisciplinebook.blogspot.com

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Courts have the power and the duty to make certain that an administrative official or body has not acted in excess of the grant of authority given by statute

Courts have the power and the duty to make certain that an administrative official or body has not acted in excess of the grant of authority given by statute
2015 NY Slip Op 04712, Appellate Division, Third Department

The Civil Service Law §75 hearing officer found the employee [Employee] guilty of two of the three charges of alleged misconduct and recommended that the penalty of termination be imposed. The appointing authority adopted the findings and recommendation of the hearing officer and terminated Employee.

Employee then appealed the appointing authority’s determination to the New York State Civil Service Commission as authorized by Civil Service Law §76(1).* The Commission sustained the appointing authority’s decision and Employee then sought judicial review of the Commission’s decision alleging,  among other things, that “the disciplinary proceedings were untimely." Supreme Court transferred Employee's appeal to the Appellate Division.**

The Commission argued that its determination was not subject to judicial review, citing Civil Service Law §76(3). §76(3), said the Commission, provides that where, as here, an employee has elected to appeal an adverse disciplinary decision by the appointing authority to a State or local civil service commission, "[t]he decision of [the commission] shall be final and conclusive, and not subject to further review in any court."

The Appellate Division, conceding that “Such explicit statutory language” ordinarily bars further appellate review, said it could review the Commission’s ruling as such a “statutory preclusion of all judicial review of the decisions rendered by an administrative agency in every circumstance would constitute a grant of unlimited and potentially arbitrary power too great for the law to countenance,” citing Pan Am. World Airways v New York State Human Rights Appeal Bd., 61 NY2d 542 and Baer v Nyquist, 34 NY2d 291. The court explained that “even when proscribed by statute, judicial review is mandated when constitutional rights are implicated by an administrative decision or ‘when the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction.’"

In this instance Employee, presumably a state employee serving in a position designated managerial or confidential pursuant to Article 14 of the Civil Service Law, the Taylor Law, asserted that the Commission acted in excess of its statutory authority, and thus, its jurisdiction, by sustaining disciplining action taken against her by the appointing authority for conduct that occurred more than one year before the disciplinary proceeding was commenced against her. Such action, argued Employee, was, in violation of the limitations period legislatively established by Civil Service Law §75(4).

The Appellate Division, observing that “[T]he courts have the power and the duty to make certain that [an] administrative official has not acted in excess of the grant of authority given . . . by statute or in disregard of the standard prescribed by the legislature," said that it was persuaded that, in view of the circumstances presented here, "this Court must review the determination to the limited extent of determining whether Commission  acted in excess of its authority by disciplining petitioner for time-barred charges."

The court indicated that the relevant provision in the Civil Service Law barred disciplinary action based on alleged misconduct unless it was commenced within "one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges," provided, however, the charges of alleged misconduct are subject to an exception provided within the statute, which states that the limitation period does not apply "where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime."

The Commission contended that this statutory exception properly applies in Employee’s situation as she had been charged with conduct which constitutes the crime of official misconduct. Official misconduct is committed "when, with intent to obtain a benefit or deprive another person of a benefit . . . [a public servant] commits an act relating to his [or her] office but constituting an unauthorized exercise of his [or her] official functions, knowing that such act is unauthorized" (Penal Law §195.00 [1]).

The Appellate Division said that the relevant charges brought against Employee “fail to allege that [Employee] acted with the intent to gain a benefit or that she knew that her conduct was unauthorized; both of these mens rea [criminal intent] requirements are essential elements of the crime of official misconduct.” Further, said the court, in determining whether the statutory exception applies only the allegations of misconduct complained of and described in the charges and specifications are considered and the court may not consider any evidentiary proof submitted during later proceedings.

The court then rejected the Commissions argument that a general assertion included elsewhere in the notice of discipline that the misconduct described in the charges violated several criminal statutes, including Penal Law §195.00, cured the deficiency. Accordingly, said the court, “the conduct described in the charge[s] would not, if proven in court, constitute a crime," and thus "the statutory exception does not apply, and the charges are untimely."

The Appellate Division ruled that in affirming the discipline imposed upon Employee for time-barred charges the Commission "acted in excess of the grant of authority given [to it] by statute [and] in disregard of the standard prescribed by the legislature." Accordingly, said the court, the Commission's determination "must be annulled," and the disciplinary charges filed against Employee dismissed as untimely.

* Civil Service Law §76(1), in pertinent part, provides that an individual may appeal an adverse disciplinary determination “either by an application to the state or municipal commission having jurisdiction, or by an application to the court in accordance with the provisions of Article seventy-eight of the civil practice law and rules.”

** See CPLR §7504 [g].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04712.htm

_____________

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 448 page e-book. For more information click on
http://thedisciplinebook.blogspot.com

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Oral and physical abuse of students results in termination of the educator

Oral and physical abuse of students results in termination of the educator
2015 NY Slip Op 04414, Appellate Division, First Department

Supreme Court sustained an arbitration award that found a teacher [Petitioner] guilty of conduct described in the opinion as oral and physical abuse of students and the oral abuse of one student's parent and the imposition of the penalty of termination of the Petitioner's services. The decision notes that such abuse “continued for a period of three academic years, even after several letters were placed in [Petitioner's] file memorializing the complaints.” Also noted was the fact that one such memorial warned that further incidents could lead to Petitioner’s termination.

The Appellate Division unanimously affirmed the Supreme Court’s determination, commenting that “The termination of [Petitioner's] employment does not shock our sense of fairness” in view of what the court described as Petitioner’s not taking responsibility for his actions, repeatedly denying most of the incidents despite corroborating evidence, and has shown no remorse.

The court said that that the hearing officer, after considering Petitioner's long, otherwise satisfactory tenure and the principle of progressive discipline, properly found that Petitioner's repeated misconduct and the several occasions on which he was warned about it “to no avail” rendered imposing the penalty of termination to be appropriate.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04414.htm

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli for the Week Ending June 6, 2015 
Click on text highlighted in color to access the report and information

Wallkill Fire District Board Chair charged with stealing $240,00

The chairman of the Wallkill Fire District’s Board of Fire Commissioners was charged Monday morning with stealing nearly $240,000 in a scam that spanned three years, State Comptroller Thomas P. DiNapoli and Ulster County District Attorney Holley Carnright announced. Michael Denardo, 38, of Wallkill, is accused of conning a board member into signing blank checks which he later cashed for personal use. He was arraigned in Shawangunk Town Court.

Posted on the Internet at:

http://www.osc.state.ny.us/press/releases/june15/060115.htm?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060115release

A video about Wallkill and other recent efforts by this office to expose public corruption is posted on the Internet at:

http://www.osc.state.ny.us/investigations/

Former City of Rensselaer Public Works Commissioner found guilt of stealing scrap metal proceeds

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman Wednesday announced the sentencing of Thomas Capuano, the former commissioner of the Department of Public Works (DPW) of the city of Rensselaer, for his role in teaming with two DPW employees to divert $46,000 from the city by pocketing the cash from scrap metals acquired as part of their jobs with the city.

Posted on the Internet at:

http://www.osc.state.ny.us/press/releases/june15/060315b.htm?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315brelease

Municipal Audits posted on the Internet

Hamlin Fire Department,

http://www.osc.state.ny.us/localgov/audits/firedists/2015/hamlin.pdf?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315arelease

Islip Terrace Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/islipterrace.pdf?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315arelease

Town of Minden

http://www.osc.state.ny.us/localgov/audits/towns/2015/minden.pdf?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315arelease

Village of Owego

http://www.osc.state.ny.us/localgov/audits/villages/2015/owego.pdf?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315arelease