The aggrieved employee has the burden of proving that his or her employee organization’s action, or inaction, breached its “Duty of Fair Representation”

The aggrieved employee has the burden of proving that his or her employee organization’s action, or inaction, breached its “Duty of Fair Representation”

DeOliveira v New York State Pub. Empl. Relations Bd., 2015 NY Slip Op 08228, Appellate Division, Third Department

Donna Scarpinati DeOliveira filed an improper employee organization practice charge with the Public Employment Relations Board [PERB] alleging that the Cairo-Durham Teachers Association [Association], the employee organization representing her purposes of collective bargaining, violated its duty of fair representation.

The Cairo-Durham Central School District [District] had appointed DeOliveira a position in the elementary education tenure area subject to her satisfactory completion of a three-year probationary period. She subsequently absented herself for a “period of unpaid maternity leave.”

After DeOliveira returned to teaching full time the District abolished four positions in the elementary education tenure area and she was notified that she would be terminated at the end of the school year because her period of unpaid maternity leave that she took had the affected her seniority status. As a result she became one of the four least senior teachers in her tenure area.

DeOliveira asked the Association to file grievances on her behalf challenging the District's calculation of her seniority for the purposes of layoff but the Association decided that she had no viable claims and declined to file the grievance. DeOliveira later learned that, prior to the layoffs, the Association had agreed with the District's decision to exclude at least two sixth grade teachers from the elementary education tenure area — Peter Goodwin and Erin Murphy, both of whom were appointed by District after DeOliveira’s effective date of appointment.

In her improper practice charge filed with PERB, DeOliveira alleged, among other things, that the Association did not fairly represent her interests because it:

1. willfully failed to investigate her concerns regarding the impact of her unpaid maternity leave on her seniority status;

2. falsely represented to her that it had consulted with an attorney concerning the matter on her behalf; and

3. intentionally withheld from her the so-called "clandestine agreement" it made with the District to protect Goodwin and Murphy from being laid off.

Following a hearing, a PERB Administrative Law Judge [ALJ] dismissed the charge. PERB affirmed the ALJ’s ruling and ultimately DeOliveira commenced a CPLR Article 78 proceeding seeking review of PERB's decision. Supreme Court transferred the matter to the Appellate Division.

Citing Chenango Forks Central School District v PERB, 21 NY3d 255, the Appellate Division said that its review of a PERB determination is limited to whether it is supported by substantial evidence, that is, whether there is a basis in the record allowing for the conclusion that "PERB's decision was legally permissible, rational and thus not arbitrary and capricious.” The court said that in its view there was substantial evidence in the record supporting PERB's determination that the Association did not breach its duty of fair representation it owed to DeOliveira.

To establish a claim that the employee organization breached its duty of fair representation the Appellate Division explained that "there must be a showing that the activity, or lack thereof, which formed the basis of the charges … was deliberately invidious, arbitrary or founded in bad faith." DeOliveira, said the court, failed to made this showing regarding any of her specific allegations.

As to DeOliveira’s claim that the Association willfully failed to adequately investigate the District's exclusion of the time that she was on unpaid maternity leave from its calculation of her seniority, she had admitted that she met with Association representatives on multiple occasions regarding her concerns and the Association's president testified that a substantial investigation followed. Further, said the Association, DeOliveira was also advised in writing of its rationale and ultimate decision not to process her grievance.

As to DeOliveira’s allegation that the Association’s president told her that he would consult with a New York State United Teachers [NYSUT] attorney regarding her grievance, the Association president admitted that he did not consult with an attorney but said that he did consult with a NYSUT  Labor Relations Specialist. DeOliveira, said the court, did not offer any proof that the president’s misrepresentation was intentional or that he relied on the Labor Relations Specialist’s advice in bad faith.*

Turning to DeOliveira’s argument that the Association represented her in bad faith by making a "clandestine agreement" with the District to wrongly exclude Goodwin and Murphy from the elementary education tenure area at her expense, the court said there was nothing in the record to support such a claim.

Noting that the Commissioner of Education, in his ruling in an appeal** filed with Commissioner by DeOliveira, determined that Goodwin and Murphy should have been included in the elementary education tenure area for the purpose of layoffs, the Appellate Division said that “there is no evidence that the decision not to do so was motivated by animus toward petitioner or favoritism toward Goodwin and Murphy.” At worst, said the court, the Association's agreement with the District regarding the treatment of Goodwin and Murphy, and its attendant failure to pursue DeOliveira 's grievance about it, was an honest mistake, and "the fact that a union is guilty of mistake, negligence or lack of competence does not suffice [to prove] a[n unfair representation] claim."

The Appellate Division confirmed PERB’s determination and dismissed DeOliveira’s Article 78 petition.

* The president testified that he considered the Labor Relations Specialist to be the Association's "counsel" when it came to assessing teacher grievances.

** Appeal of Donna Scarpinati De Oliveira, from action of the Cairo-Durham Central School District, Decisions of the Commissioner of Education, Decision 16,411. The Commissioner ruled that even had Goodwin and Murphy been in retained in the elementary tenure area and DeOliveira seniority determined in consideration of their “seniority” in such tenure area, DeOliveira was still the least senior teacher in the elementary tenure area.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08228.htm

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions involving layoff and related matters. For more information click on http://booklocker.com/5216.html

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Governor Cuomo signs Executive Order 8-149 providing for expediting the Freedom of Information Law appeals process

Governor Cuomo signs Executive Order 8-149 providing for expediting the Freedom of Information Law appeals process

Source: Office of the Governor

Executive Order 8-149 “fast-tracks” the Freedom of Information Law [FOIL] appeals process by requiring that all state agencies and departments to “file notice of an appeal, settle the record on appeal, and file a brief within 60 days, absent extraordinary circumstances outside agency control.”

In addition, the Governor said that legislation will be introduced in the upcoming session that encompasses the order, “while also correcting the serious flaws of Assembly Bill 114 and Assembly Bill 1438-B.”

The Executive Order is set out below:

Executive Order 8-149,

EXPEDITING THE FOIL PROCESS

WHEREAS, we seek to further transparency and openness in New York State government; and

WHEREAS, the purpose of the Freedom of Information Law (FOIL) is, and has always been, to foster an open and transparent government that all New Yorkers can hold proud; and

WHEREAS, I received two bills pertaining to FOIL from the Legislature; and

WHEREAS, while their goals were well-intended, these bills are seriously flawed and would radically transform the litigation process, are myopic in their scope and focus only on one branch of government, and would only serve to perpetuate a fractured system of transparency and data production by intentionally excluding other branches of government; and

WHEREAS, Assembly Bill 114 has significant technical issues in that it: would substantially alter the balance of appellate rights between state agencies and non-state agency requestors, in that the condensed timeframe would only apply when a state agency appeals an adverse decision, which is necessarily an inequitable outcome, conversely, a non-state agency party would continue to have the longer time periods for appeal that are currently allowed by law; would eliminate judicial discretion regarding the time available to perfect an appeal as permitted by Civil Procedure Law and Rules § 5530(c), which allows each department of the appellate divisions to set their own rules governing the time to perfect an appeal, and/or when an appeal is subject to dismissal for failure to prosecute and/or deemed abandoned; fails to provide for an extension of the 60-day timeframe, even on consent; puts a substantial burden on state agencies to perfect their appeals and may make it difficult for agencies to serve and file appellate records and briefs, possibly compromising a state agency’s due process rights; and

WHEREAS, Assembly Bill 1438-B also has significant technical issues in that it: would allow for attorney’s fees to be assessed solely against a state agency, rather than uniformly against both parties; would also allow for attorney’s fees to be assessed against a state agency, even if the state agency ultimately prevails; would require a trial court to assess attorney’s fees against an agency when an agency denies access to FOIL requests in “material violation” of FOIL and with no reasonable basis for denying such access; fails to define what a “material violation” is, allowing each court to define the scope of the term, and leaving litigants without any clarity; and

WHEREAS, these bills fail to include the legislature in any meaningful FOIL reform; and

WHEREAS, I vetoed Assembly Bill 114 and Assembly Bill 1438-B for the reasons set forth above; and

WHEREAS, the Executive has and will continue to lead by example in advancing transparency and efficiency in government and, consistent with that principle, will immediately direct state agencies to fast track FOIL appeals, and will introduce legislation that will encompass these issues, address the described flaws, and execute more comprehensive FOIL reform that will cover all branches of state government.

NOW, THEREFORE, I, ANDREW M. CUOMO, Governor of the State of New York, by virtue of the authority vested in me by the Constitution and the Laws of the State of New York, do hereby find that, in light of recent events, we must do more to immediately advance transparency in government. Therefore, pursuant to the authority vested in me by the Constitution of the State of New York and Section 28 of Article 2-B of the Executive Law, I hereby direct all state agencies to adhere to the spirit of Assembly Bill 114, and move post-haste in filing a notice of appeal, settling the record on appeal, and filing a brief, within 60 days, absent extremely complex matters or extraordinary circumstances outside agency control; and

FURTHER, this Order shall take effect immediately and shall remain in effect until further notice.

G I V E N under my hand and the Privy Seal of the State in the City of Albany this twelfth day of December in the year two thousand fifteen.

BY THE GOVERNOR

Secretary to the Governor

s/

Although a contract may provide for the resolution of disputes by arbitration, litigation-related conduct by a party may constitute a waiver of its right to demand arbitration

Although a contract may provide for the resolution of disputes by arbitration, litigation-related conduct by a party may constitute a waiver of its right to demand arbitration

Cusimano v Schnurr, 2015 NY Slip Op 09232, Court of Appeals

The issues presented by this appeal are whether the Federal Arbitration Act [FAA] is applicable to disputes arising under the several agreements at issue in this action and, if so, whether the plaintiffs, Rita and Dominic Cusimano waived their right to arbitrate the dispute by pursuit of this litigation in court. The Court of Appeals held that although the FAA does apply in this instance, the Cusimanos, by their actions in initiating litigation concerning the matter in Supreme Court, waived their right to arbitrate their complaint.

Citing 9 USC §2, the Court of Appeals said that the FAA provides that "[a] written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."

In this instance the court found that the ultimate purpose of the agreements was to authorize participation in the business of commercial real estate and that was, in fact, what the entities did. In determining whether the FAA applies, the emphasis is meant to be on whether the particular economic activity at issue affects interstate commerce — and, concluded the Court of Appeals, here it does.

In Stark v Molod Spitz DiSantis & Stark, PC, 9 NY3d 59, it was held that “like contract rights generally, a right to arbitration may be modified, waived or abandoned.”  Thus, said the court, a litigant may not compel arbitration when its use of the courts is “clearly inconsistent with [its] later claim that the parties were obligated to settle their differences by arbitration.”

Although not every attempt to litigate an issue in court “effects a waiver of the right to arbitrate," in this instance the Court of Appeals was satisfied that the totality of the Cusimanos' conduct here establishes its waiver of its right to arbitrate the matter, explaining that although federal policy expresses a preference in favor of arbitration, when addressing waiver, courts should consider the amount of litigation that has occurred, the length of time between the start of the litigation and the arbitration request, and whether prejudice has been established.

In the words of the Court of Appeals, “[a]fter vigorously pursuing their litigation strategy for approximately one year, the Cusimanos moved to compel arbitration. Even more telling, said the court, the Cusimanos' desire for arbitration only arose after Supreme Court made plain its view that the Cusimanos' claims were vexatious and largely time-barred. Indeed, in the court of its litigation before the Supreme Court, the Cusimanos had expressly represented to the court that they did not want to go to arbitration.”

Deeming the Cusimanos' behavior in this regard suggests “forum-shopping,” the Court of Appeals concluded that under these circumstances, prejudice against Schnurr has clearly been established. Finding that the Cusimanos actions had constituted a waiver their right to arbitration, the Court of Appeals said that the issue of timeliness should be determined by the court. Further, the court noted that although in previous cases it had, in dicta,* indicated that waiver is generally one of the issues that should be decided by the arbitrator, courts have held that whether a party has waived arbitration by litigation-related conduct is an issue for the courts,

* Dicta – a statement or observation in a judicial ruling or interpretation that was not part of the legal basis for judgment.

The decision has been posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09232.htm

Removing a public officer holding an office for specific term pursuant to a “municipal cooperative agreement” before his or her term of office expires for other than cause

Removing a public officer holding an office for specific term pursuant to a “municipal cooperative agreement” before his or her term of office expires for other than cause

Rubeor v Town of Wright, 2015 NY Slip Op 08895, Appellate Division, Third Department

Steven Rubeor was appointed to fill the unexpired term of his predecessor as Assessor of the Town of Wright [Wright], the Town of Esperance and the Town of Schoharie, each town having entered into a municipal cooperative agreement establishing a coordinated assessment program [CAP]. Under a CAP, "a single assessor [is] appointed to hold the office of assessor in all the participating assessing units."

In December 2012, prior to the expiration of Rubeor 's term, Wright’s Town Board [Board] resolved to withdraw from the CAP and appointed Susan Crosby as the Town's interim Assessor. Rubeor initiated a combined CPLR Article 78 proceeding and action pursuant to 42 USC §1983, a federal civil rights law,* asserting that the Board improperly removed him from office, depriving him of a vested property right. Supreme Court granted Rubeor’s petition to the extent of annulling the Board's determination to remove him as Wright’s assessor, concluding that he was entitled to complete his term, which ended on September 30, 2013. Wright appealed.

The Appellate Division affirmed the Supreme Court’s ruling.

Noting that “This dispute raises an issue of first impression as to whether a town's withdrawal from a CAP truncates an assessor's term of office,” the court said that: 

[1] there is no dispute here that Wright is required to appoint an assessor, whose term of office shall be six years; and 

[2] an assessor is a public officer who ordinarily may only be removed from office for cause under Public Officers Law §36. 

The question presented here, said the Appellate Division “is whether a CAP changes this structure.”

While the statute provides that an assessor's term shall be for six years, it further provides that a member of a CAP may withdraw from a CAP at any time, provided that it does so at least 45 days before the next taxable status date. However, the said the court, “The statute is otherwise silent as to what happens to an assessor's term when, as here, a CAP member opts to withdraw prior to the expiration of the [assessor’s] term.”

In construing a statute the Appellate Division said the court must:

1. Determine the Legislature's intention, giving due effect to the plain meaning of unambiguous statutory language; and

2. Where the statute has “competing provisions,” the statute must be construed “as a whole and that its various sections must be considered with reference to one another."

Noting that an amendment to the Real Property Tax Law §579 in 2009, among other things, clarified that an assessor appointed in a CAP receives a six-year term and shortened the notice period for a CAP member to withdraw from the CAP, the Appellate Division concluded that the adoption of these companion provisions demonstrated that the Legislature intended to keep an assessor's six-year term intact even where a CAP member elects to withdraw from the CAP. Accordingly, insofar as the assessor is concerned, the effect of withdrawal from the CAP “is merely delayed until the assessor's term expires, at which time the assessing unit is free to choose a new assessor, without approval from any other assessing unit” in the CAP.**

Although in an 1997 the Department of Taxation and Finance's counsel  opined that the adoption of a CAP "may truncate the term of office of an incumbent appointed assessor,"*** the Appellate Division observed “that is not the situation presented here,” and, more significantly, commented “nor is that letter opinion binding, particularly in view of the 2009 amendment to RPTL 579.”

The bottom line: the court held that Rubeor’s term of office did not end when the Town Board adopted a resolution to withdraw from the CAP and that Rubeor held a right to continued employment until the expiration of his term of office.

* Wright removed the action to the United States District Court for the Northern District of New York but that court abstained from exercising jurisdiction pending the resolution of the underlying statutory dispute in state court, staying Rubeor's claims pursuant to 42 USC §1983.

**As Rubeor's term of office had since ended, Supreme Court had declined to reinstate him to the position as Town Assessor for Wright. The Appellate Division said that “Given that [Rubeor] did not appeal from the determination and expressly seeks to affirm the judgment in his brief, we do not address the corollary issue of back pay.”

*** 10 Opinions of Counsel SBRPS 35 - Posted on the Internet at:

https://www.tax.ny.gov/pubs_and_bulls/orpts/legal_opinions/v10/35.htm

The Rujbeor decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08895.htm

Employee terminated as the result of disciplinary action not entitled to his or her unused vacation credit accruals

Employee terminated as the result of disciplinary action not entitled to his or her unused vacation credit accruals

Kozlow v City of New York, 2015 NY Slip Op 08960, Appellate Division, First Department

The Appellate Division affirmed the City of New York’s dismissal police officer David R. Kozlow holding that substantial evidence supported the City’s finding that Kozlow had engaged in numerous acts of misconduct, including failing to follow “proper procedure in presenting a prisoner at the station house; delaying his return to the station house in order to earn overtime; abandoning a fixed post; failing to follow directions to proceed immediately to a post; writing improper comments on his monthly report; and being discourteous to supervisors.”

As to the penalty imposed, termination, the court said that Kozlow’s prior disciplinary record, which included prior dismissal probations, and in light of the number and persistency of his infractions, termination from employment does not shock its sense of fairness.

The Appellate Division also ruled that the Police Commissioner was authorized to impose the penalty of a 30-day suspension without pay and to dismiss petitioner Kozlow City of NY § 14-115[a] and that Kozlow was not entitled to his “unused accrued vacation and sick leave” upon separation from service since he was terminated from employment.

Similarly with respect to employees of the State as the employer, 4 NYCRR 23.1, provides, in pertinent part that “No employee who is removed from State service as a result of disciplinary action or who resigns after charges of incompetency or misconduct have been served upon him shall be entitled to compensation for vacation credits under the provisions of this Part.” §23.1 also provides that the appointing authority may require, as a condition for payment for unused vacation credit that the employee submit written notice of his or her resignation at least two weeks prior to his or her last day of work.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08960.htm