The reasons that would support the vacating of a disciplinary penalty imposed by the arbitrator following a disciplinary hearing are limited

The reasons that would support the vacating of a disciplinary penalty imposed by the arbitrator following a disciplinary hearing are limited

Esteban v Department of Educ. of the City School Dist. of the City of N.Y., 2015 NY Slip Op 06965

The New York City Department of Education [DOE] had filed disciplinary charges against Damian Esteban, a teacher employed by DOE, which were submitted for adjudication to an arbitrator pursuant to Education Law §3020-a. The arbitrator sustained certain of the charges and specifications and determined that the appropriate penalty for Esteban's misconduct was dismissal.

Esteban filed a petition to seeking a court order vacating that portion of a disciplinary arbitrator's decision that imposed the penalty of termination of his employment as a public school teacher. Supreme Court granted Esteban’s petition and remanded the matter for the imposition of an appropriate lesser penalty.

DOE appealed and the Appellate Division unanimously reversed the Supreme Court’s ruling on the law and dismissed the proceeding.

Citing Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, the court explained that an arbitration award determining an employment dispute in public education may not be vacated unless "it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The Appellate Division held that the penalty of dismissal was not irrational and was not against public policy. Nor, said the court, was it ultra vires* for the arbitrator to determine that Esteban's public possession of heroin warranted the penalty of dismissal.

Citing Lackow v Department of Education, 51 AD3 563, the court then held that imposing termination of employment as a penalty for such misconduct not "so disproportionate to the offense as to be shocking to the court's sense of fairness."

* An "ultra vires" act refers to an act or action that was beyond the scope of the authority of the arbitrator to perform. Here the court concluded that the penalty imposed on Esteban was not ultra vires.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06965.htm

______________

A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://nypplarchives.blogspot.com/

______________

Selected reports issued by the State Comptroller during the week ending October 3, 2015

Selected reports issued by the State Comptroller during the week ending October 3, 2015

Source: Office of the State Comptroller

Click on the text in color to access the Comptroller’s report.

Top Retirement System staff appointed
New York State Comptroller Thomas P. DiNapoli has named Colleen Crawford Gardner as Executive Deputy Comptroller and Melanie Whinnery as Deputy Comptroller of the New York State and Local Retirement System (NYSLRS).

http://www.osc.state.ny.us/press/releases/sept15/093015.htm?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=093015release

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the municipal units of government:

Barnard Fire Department

http://www.osc.state.ny.us/localgov/audits/firedists/2015/barnard_dept.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

Barnard Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/barnard_dist.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

Orange Lake Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/orangelake.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

Village of Silver Springs

http://www.osc.state.ny.us/localgov/audits/villages/2015/silversprings.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

Southern Cayuga Lake Intermunicipal Water Commission

http://www.osc.state.ny.us/localgov/audits/jointacts/2015/southerncayugalake.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

and the

Town of Westport

http://www.osc.state.ny.us/localgov/audits/towns/2015/westport.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease 


MTA Faces $9.8 Billion Capital Plan ShortfallWhether the Metropolitan Transportation Authority (MTA) will be able to limit future fare and toll increases to 4 percent as planned will depend on the amount of capital funding made available by New York state and New York City, and whether the economy continues to grow without interruption as anticipated by the MTA, according to a report released by New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/sept15/092915.htm?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=092915release 


New York Medicaid Costs for Diabetes more than $1.2 BillionApproximately 460,000 New York Medicaid recipients diagnosed with diabetes received diabetes-related services costing more than $1.2 billion in state fiscal year (SFY) 2013-14, according to a report released by State Comptroller Thomas P. DiNapoli detailing the statewide costs of the disease.

http://www.osc.state.ny.us/press/releases/oct15/100215.htm?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215release


Tentative Schedule for the Sale of State Obligations

New York State Comptroller Thomas P. DiNapoli announced a tentative schedule for the planned sale of obligations for the state, New York City, and their major public authorities during the fourth quarter of 2015.

http://www.osc.state.ny.us/press/releases/oct15/100115.htm?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100115release

Finding an individual guilty of disciplinary charges and imposing a penalty must be supported by substantial evidence

Finding an individual guilty of disciplinary charges and imposing a penalty must be supported by substantial evidence

2015 NY Slip Op 06924, Appellate Division, Second Department

An employee was served with disciplinary charges pursuant to Civil Service Law §75  alleging excessive absence and abuse of the employee’s leave privileges by the employee’s utilization of sick and personal leave on days that fell immediately before or after weekends, holidays, vacations, or other pre-approved absences on leave.

The hearing officer who conducted a hearing on the charges recommended that all of the charges and specifications be dismissed, and that the employee's 30-day suspension be nullified with full back pay. The employer, however, rejected the findings and recommendation of the hearing officer and determined that the employee was guilty of one charge of misconduct and neglect of duty.* The penalty imposed: suspension without pay for 30 calendar days.

The employee was served with disciplinary charges alleging excessive absence, abuse of leave privileges “utilizing sick and/or personal leave on days that fell immediately before or after weekends, holidays, vacations, or other pre-approved leave.

The employee initiated a CPLR Article 78 proceeding against the employer contending that the employer’s determination was not supported by substantial evidence. The Appellate Division agreed.

The Appellate Division explained that a court’s review of a determination rendered by an administrative body following "a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record." Citing 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, the court said that substantial evidence, "consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably—probatively and logically."

Noting that “the quantum of evidence that rises to the level of substantial' cannot be precisely defined, the court indicated that the inquiry is whether in the end “the finding is supported by the kind of evidence on which responsible persons are accustomed to rely in serious affairs."

The court decided that the employer’s determination that the employee had engaged in misconduct and neglect of duty by abusing her leave time privileges, and was excessively absent from work was not supported by substantial evidence.

Accordingly, the Appellate Division granted the employee’s grant the petition, annulled the employer’s determination, vacate the penalty imposed on the employee, and remit the matter to the employer to determine the amount of back pay and benefits owed to the employee.

* Presumably the allegation of “neglect of duty” was recited in the charges and, or, specifications served on the employee as an individual cannot be found guilty of allegations not set out in the charges or the specifications. Case law has long held that an employee may not be found guilty of acts of alleged misconduct or incompetence that have not been charged [see, for example, Shuster v Humphrey, 156 NY 231].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06924.htm

_________________

The Discipline Book, - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

  _________________

Imposing the penalty of termination must not be so disproportionate to the offense committed as to be shocking to the court's sense of fairness

Imposing the penalty of termination must not be so disproportionate to the offense committed as to be shocking to the court's sense of fairness

Monahan v City of Glen Cove, 2015 NY Slip Op 06920, Appellate Division, Second Department

An employee of the City of Glen Cove, Kevin Monahan, was served with disciplinary charges.  The City adopted the findings of a hearing officer, made after a hearing, that Monahan was guilty of fraud and offering a false instrument for filing. The penalty imposed: terminated of Monahan's employment.

Monahan appealed his dismissal from his position with the City, contending that a lesser penalty should have been imposed.

The Appellate Division said that a judicial review of an administrative determination made after a trial-type hearing directed by law is limited to whether the determination is supported by substantial evidence. Further, said the court, in the event there is conflicting evidence or different inferences may be drawn from the evidence in the record, "the duty of weighing the evidence and making the choice rests solely upon the [administrative tribunal]. The courts may not weigh the evidence or reject the choice made by [such tribunal] where the evidence is conflicting and room for choice exists."

The Appellate Division then noted that any “credibility issues were resolved by the hearing officer, and [it found] no basis upon which to disturb the hearing officer's determination, which, the court noted, was supported by substantial evidence.

As to the penalty imposed by the City, the court cited the so-called “Pell Doctrine”* and found that “Contrary to the [employee's] contention, under the circumstances presented, the penalty of termination of his employment was not so disproportionate to the offense committed as to be shocking to one's sense of fairness.”

* Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06920.htm

­­­­­­­­­­­­­­­­­______________

A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://nypplarchives.blogspot.com/

______________

Failing to follow the established procedures for conducting annual employee performance rating undermines the integrity and fairness of the process

Failing to follow the established procedures for conducting annual employee  performance rating undermines the integrity and fairness of the process

Murray v Board of Educ. of the City School Dist. of the City of N.Y., 2015 NY Slip Op 06866, Appellate Division, First Department

Juanita Murray, a school social worker employed by the New York City Department of Education [DOE] petitioned Supreme Court to annul the unsatisfactory performance rating and the denial of her appeal of that rating for the 2010-2011 school year. Supreme Court granted DOE’s motion to dismiss Murraypetition and Murrayappealed.

The Appellate Division unanimously reversed the lower court’s decision, on the law, granted Murray’s petition to the extent of annulling the U-rating.

Murray’s principal, Robert Mercedes, had rated her unsatisfactory in seven categories in her 2010-2011 Annual Professional Performance Review:  attendance and punctuality; professional attitude and professional growth; resourcefulness and initiative, where he wrote that she lacked initiative and growth; analysis and interpretation of assessment data; translates assessment findings into educationally relevant goals and objective; appropriateness and flexibility of counseling approaches; and submitting assessment reports.

Noting the Murray, as was her right under the parties' collective bargaining agreement, appealed her U-rating to the Chancellor of the DOE the court said that although both Murray and Mercedes testified at the hearing, no transcript was included in the record. The court said the DOE respondents “rely on the report of the hearing issued by the Chancellor's Committee, which described the parties' arguments, made findings of fact, and recommended that the U-rating be sustained.”

Having exhausted her administrative remedies, Murrayfiled a timely CPLR Article 78 petition challenging the U-rating given her in its entirety, contending that DOE had not adhered to its own procedures nor to the relevant procedures set out in the relevant collective bargaining agreement. On this point the Appellate Division, citing DOE Special Circular No. 45, observed that “as a pedagogical employee, [Murray] was to be given at least one full period of review during the school year by her principal, followed by a meeting with the principal to discuss her strengths and any areas in need of improvement. Additionally, as a social worker employed at a school, she should have been evaluated by the school principal in consultation with the in-discipline supervisor, in accordance with the collective bargaining agreement.”

Also of “great concern” the Appellate Division was the fact that an in-discipline supervisor did not critique Murray's work as required by the collective bargaining agreement and in the absence of a transcript of the Chancellor's Committee hearing, it only had the statements Murray’s made in her underlying papers and again on appeal, that Principal Mercedes admitted to not having the experience or qualifications to evaluate her without input from the in-discipline supervisor prior to asking Murray for certain documents. Further, the court said that there was no evidence that Murraywas notified before the end of the school year in June 2011 that her work was considered unsatisfactory.

The court said that “The record is clear that [Murray] was deprived of her substantial rights in the review process culminating in her U-rating when measured against the methodology followed in other such case, citing Cohn v Board of Education, 102 AD3d 586. The Appellate Division found that “the instant record does not show that [Murray] was provided with support, or formal constructive criticism, of any kind.” Indeed, the court said that the DOE respondents “have not demonstrated by competent proof that they gave [Murray], who was tenured, any feedback of any kind.”

In the words of the Appellate Division, “… the complete absence of constructive criticism and warnings during the entire school year, compounded by the lack of a formal observation and accompanying feedback during the school year, ‘undermined the integrity and fairness of the process’." 

Accordingly, the Appellate Division reversed the ruling of the Supreme Court and granted Murray’s petition to the extent of annulling the U-rating.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06866.htm