Recent decisions by NYC Office of Administrative Tribunals and Hearing Administrative Law Judges

Recent decisions by NYC Office of Administrative Tribunals and Hearing Administrative Law Judges

Click on link in highlighted in color to access the text of the decision

New York City Correction Officer found guilty of off-duty misconduct

OATH Index No. 1349/15

Astrid B. Gloade, an OATH Administrative Law Judge, found that an off-duty New York City correction officer brandished his firearm while intoxicated during an altercation outside of a night club and failed to cooperate with the police during his arrest was guilty of misconduct.

Noting that in a disciplinary proceeding the charging party bears the burden of proving the alleged misconduct by a preponderance of the credible evidence, Judge Gloade found that the employer met its burden with respect to most of the charged violations.

The ALJ recommended that the appointing authority terminate the correction officer from his position.

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1349.pdf

Employee improperly modified New York City school bus routes

OATH Index No. 2135/15

A quality assurance specialist assigned to manage school bus routes was charged with incompetence and insubordination when, on multiple occasions, he improperly modified New York City school bus routes and failed to communicate changes to school and bus personnel.

The specialist's mistakes resulted in students missing a day of classes and in multiple routers working overtime to correct his errors.

OATH Administrative Law Judge John B. Spooner sustained all of the charges and recommended the termination of the specialist's employment.   

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2135.pdf

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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When interpreting a collective bargaining agreement the arbitrator may not rewrite a contract provision by adding a new clause based upon a past practice

When interpreting a collective bargaining agreement the arbitrator may not rewrite a contract provision by adding a new clause based upon a past practice

Matter of City of Rochester (Rochester Police Locust Club), 2015 NY Slip Op 08580, Appellate Division, Fourth Department

Supreme Court granted the City of Rochester’s [Rochester] CPLR Article 75 application to vacate an arbitration award in favor of the Rochester Police Locust Club [Union]. The Union appealed but the Appellate Division affirmed the Supreme Court’s ruling.

The genesis of the grievance leading to the arbitration was a determination by Rochester denying a police sergeant's request for a vehicle to use on the job and take home. The Unionfiled on behalf of the sergeant and ultimately the arbitrator issued an award directing Rochester to provide the sergeant with a vehicle. The arbitrator ruled that the arbitrator Rochestermust provide the sergeant with a take-home vehicle “based solely on the [Rochester’s] past practice, which included providing such a vehicle to the two predecessors in his position.”

In sustaining the Supreme Court’s decision vacating the arbitration award the Appellate Division noted that the provision in the collective bargaining agreement governing arbitration provided, in relevant part, that "[t]he authority of the arbitrator shall be limited to matters of interpretation or application of the express provisions of this Agreement and the arbitrator shall have no power or authority to alter, add to or subtract from or otherwise modify the terms of this Agreement as written."

Citing Buffalo Teachers Federation v Board of Education, 50 AD3 1503, the court observed that "It is well settled that an arbitration award may be vacated if it exceeds a specifically enumerated limitation on an arbitrator's power [and that] an arbitrator exceeds his or her authority by granting a benefit not recognized under a governing collective bargaining agreement."

In this instance the Appellate Division said that the controlling provision was contained in a memorandum of agreement between Rochesterand the Union. This provision required Rochester to provide a vehicle to police "investigator[s] who are assigned to the Major Crimes Unit."

There was no question that the sergeant who had requested the vehicle was not an investigator nor was he assigned to the Major Crimes Unit. Notwithstanding this, the arbitrator concluded that Rochester must provide him with a take-home vehicle based solely on Rochester’s past practice, which included providing such a vehicle to the two predecessors in the Sergeant’s position.

This, said the court, was error explaining that although past practices may be considered by an arbitrator when interpreting a specific contractual provision, an arbitrator may not rewrite a contract by adding a new clause based upon a past practice.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08580.htm

Tenured teacher dismissed after being found incompetent and ineffective following a disciplinary hearing held pursuant to Education Law §3020-a

Tenured teacher dismissed after being found incompetent and ineffective following a disciplinary hearing held pursuant to Education Law §3020-a

Reed v Department of Educ. of the City of N.Y., 2015 NY Slip Op 09193, Appellate Division, First Department

Supreme Court, New York County dismissed Lisa Reed's the petition seeking to vacate and, or, modify the opinion and award that resulted in the termination of Reed’s employment as a tenured teacher with the New York City Department of Education. The Department had served charges and specification pursuant to Education Law §3020-a on Reed alleging that she was “incompetent and ineffective during three school years.”

Reed appealed the Supreme Court’s ruling but the Appellate Division affirmed the lower court decision, noting that the charges filed against Reed were supported by adequate evidence showing that she had failed to plan and execute lessons, as observed on multiple enumerated dates.

The Appellate Division also said that ‘The evidence shows that [Reed] continually refused to accept responsibility for her failure to deliver effective instruction. In particular, she failed to implement the school administration's professional development recommendations with regard to lesson planning preparation and execution, proper pacing of lessons, ensuring students stay on task, and assessing students' progress, among other things.”

As to the penalty imposed on Reed by the Department, termination, the court said that dismissing Reed from her position “does not shock [its] sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09193.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Union’s application to confirm an arbitration award granted but the Supreme Court’s sanction of attorney’s fees for the employer’s “frivolous conduct” subsequently vacated

Union’s application to confirm an arbitration award granted but the Supreme Court’s sanction of attorney’s fees for the employer’s “frivolous conduct” subsequently vacated

Matter of Civil Serv. Empls. Assn., Inc. (Board of Educ. of Syracuse City Sch. Dist.), 2015 NY Slip Op 08570, Appellate Division, Fourth Department

An arbitrator, following a hearing, determined that the Syracuse City School District [District] had violated the collective bargaining agreement between it and the Civil Service Employees’ Association [CSEA] when it terminated the employment of one of the employees in the negotiating unit represented by CSEA. The arbitrator directed the District to [1] reinstate the employee to his former position; [2] credit him with the seniority to which he would have been entitled had his employment not been wrongly terminated; and [3] pay him "back pay for the salary and other benefits [he] lost as a result of [his] improper termination," retroactive to 30 days before he filed his grievance.

CSEA initiated a CPLR Article 75 proceeding to confirm an arbitration award in its favor while the District cross motioned the court to vacate the award contending that the award is not final and definite, and thus subject to vacatur  because the arbitrator did not specify whether it was entitled to an offset based on funds the employee had received following his termination from unemployment insurance and other employment.

The Appellate Division rejected the District’s contention explaining that “An arbitration award is nonfinal or indefinite "only if it leaves the parties unable to determine their rights and obligations, if it does not resolve the controversy submitted or if it creates a new controversy" and sustained the arbitration award.

In this instance, said the court, the award sufficiently defined the parties' rights and obligations notwithstanding its failure to address the offset issue. As to the District’s argument regarding the “offset” it claimed, the court said that there was no indication in the record that the District asked the arbitrator for such an offset at the hearing and, although the arbitrator retained jurisdiction "with respect to the remedy” for about six weeks after the award was rendered, the District did not seek clarification of the award regarding such an offset during that period.

On another issue -- Supreme Court’s awarding CSEA attorneys' fees as a sanction for the District’s “frivolous conduct” -- the Appellate Division said the Supreme Court had made the award without issuing a written decision setting out the “frivolous conduct” on which the award is based and the reasons why the court found such conduct to be "frivolous." Accordingly, the Appellate Division modified the Supreme Court’s order by vacating its award of attorneys' fees.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08570.htm

Tests applied by courts in determining if a public officer should be removed from his or her office pursuant to §36 of the Public Officers Law

Tests applied by courts in determining if a public officer should be removed from his or her office pursuant to §36 of the Public Officers Law
Hayes v Avitabile, 2015 NY Slip Op 08693, Appellate Division, Third Department

Gary R. Hayes initiated legal action pursuant to Public Officers Law §36 in an effort to have the Appellate Division remove Matthew A. Avitabile from the office of Mayor of the Village of Middleburgh.

Explaining the "Public Officers Law §36 was enacted to enable a town or village to rid itself of an unfaithful or dishonest public official" and that removal from office is a drastic remedy reserved for conduct "'plagued by self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust,” the Appellate Division concluded that Hayes’ allegations, if proved, did not constituted such action.

Hayes had alleged that Avitabile had abused the authority vested in him by the office of Mayor by simultaneously holding the position of Village Constable, appointing unqualified candidates to various positions in his administration, “published an email attempting to defame his character” and “improperly refused to reimburse him for sewer rent charges.”

Although Avitabile conceded that he assumed the duties of Village Constable upon his election to the position of Mayor, the decision notes that some five months later he “immediately ceased all duties as Village Constable when he was advised by the Village Attorney that holding both positions simultaneously could present a conflict of interest. The Appellate Division said that Avitabile’s initial decision to serve in that dual capacity may have been imprudent, it did not amount to “unscrupulous conduct or gross dereliction of duty or conduct that connotes a pattern of misconduct and abuse of authority.”

Addressing the allegedly defamatory email involving Hayes, the court said that such conduct cannot be deemed an abuse of official power since it occurred prior to Avitabile’s assumption of public office. As to Hayes’ other allegations, the Appellate Division held that they, at best, reflected "minor neglect of duties, administrative oversights and violations of law" that do not warrant removal from office.

Concluding that the alleged conduct did not rise to the level required for removal of a public officer from his or her office, the court said that Avitabile was “entitled to a summary determination dismissing [Hayes’] petition on the merits.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08693.htm