A two-prong test is used by courts to determine if a provision in a collective bargaining agreement is subject to arbitration

A two-prong test is used by courts to determine if a provision in a collective bargaining agreement is subject to arbitration

Matter of Cortland County (CSEA, Inc., Local 1000 AFSCME, AFL-CIO), 2016 NY Slip Op 04481, Appellate Division, Third Department

Lawrence Jackson, a correction officer employed by the Cortland County Sheriff’s Department [County], was diagnosed with plantar fasciitis* in his left foot and was subsequently awarded workers' compensation benefits. However, his application for disability benefits pursuant to General Municipal Law §207-c was denied, which administrative determination was affirmed by the Appellate Division [see Matter of Jackson v Barber, 133 AD3d 958].

In August 2013, Jacksonsubmitted a physician's note stating that, as a result of his foot condition, he was restricted from working more than 40 hours and 35 minutes per week. Although the County initially accommodated Jackson's limitation, in September 2013, the County notified Jackson that his "availability to work mandatory overtime [wa]s an essential function of [his] position" and that his "limited availability pose[d] a safety issue . . . [that] could result in an understaffed shift," it could not accommodate his work "restriction on a continuing basis" and was therefore placing him on family and medical leave until such time as he was "able to complete all essential functions of [his] position."

Jackson’s employee organization for collective bargaining, CSEA, Inc., Local 1000 [CSEA], submitted a grievance on behalf of Jackson alleging the County had violated the collective bargaining agreement [CBA] between the parties by refusing to accommodate Jackson's work restriction. The County denied the grievance. In response to CSEA’s demand for arbitration the County filed a petition in Supreme Court pursuant to §7503(b) of the CPLR seeking a permanent stay of arbitration.

Concluding that the dispute was arbitrable, Supreme Court denied the County’s application for the permanent stay of arbitration. The County appealed and the Appellate Division sustained the lower court’s ruling.

The Appellate Division explained that "The court's role in reviewing applications to stay arbitration is . . . a limited one" and a two-prong test is used to determine if the dispute arbitrable.

The court initially considers if the subject of the claim sought to be arbitrated is the type authorized by Civil Service Law Article 14 [the Taylor Law] and is not barred by constitutional, statutory or public policy considerations, the first test. 

If the demand for arbitration meets this test, the court will then consider the grievance and arbitration provisions set out in the collective bargaining agreement. Where the arbitration clause in a collective bargaining agreement is broad, said the Appellate Division, courts "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

Not discerning any constitutional, statutory or public policy considerations that prohibit arbitration of the dispute, the Appellate Division considered the second prong of the test. Noting that the CBA defines an arbitrable grievance as "any alleged violation of the terms and conditions of employment,” as defined in the CBA, including any misinterpretation or misapplication of the agreement or past practices, the court noted that Article 5 of the CBA addresses employee work schedules, including certain required overtime, and includes a section on "Light Duty Assignments." **

As the CBA specifically addresses overtime and contemplates the availability of light-duty assignments, the Appellate Division found that there was a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA for the purpose of resolving the matter by arbitration. 

Recognizing that certain substantive clauses in the CBA might not support the grievances, the court said that  issue was irrelevant with respect to the threshold question of arbitrability, as the arbitrator, and not the court, is to resolve any uncertainty concerning the substantive rights and obligations of the parties."

Accordingly, the Appellate Division ruled that Supreme Court had properly determined that the dispute should be submitted to arbitration.

* A pain in the heel resulting from the inflammation the plantar, a thick band of tissue in the heel.

** Additionally, said the court, “Article 20 of the CBA discusses overtime and sets forth the procedure for assigning mandatory overtime shifts.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_04481.htm

Member service credit in the New York State Teachers' Retirement System upon the reemployment of an individual receiving a disability retirement allowance by a New York State public employer

Member service credit in the New York State Teachers' Retirement System upon the reemployment of an individual receiving a disability retirement allowance by a New York State public employer

Porco v New York State Teachers' Retirement Sys., 2016 NY Slip Op 04777, Appellate Division, Third Department

Supreme Court dismissed Joan Porco's application seeking a review of the New York State Teachers' Retirement System’s [TRS] determination denying her years of service credit for retirement purposes for certain months of service.

Porco joined TRS as a “Tier 2” member upon commencing employment as a public school teacher. Subsequently Porco sustained a serious injury and applied for, and was granted, disability retirement pursuant to Education Law §511. Later Porco returned to work for a period of three months, during which period she continued receiving her disability retirement allowance. In response to Porco's request for clarification regarding earning "member service credit" for those three months of employment, TRS advised Porco that she was ineligible to receive such credit for that period of employment.

Ultimately TRS issued a final determination denying Porco member service credit for the disputed three-month period. Porco then initiated a CPLR Article 78 proceeding challenging that determination. Supreme Court upheld TRS’s decision and dismissed Porco’s petition, which ruling was sustained by the Appellate Division.

The Appellate Division, citing Maillard v New York State Teachers Retirement System, 57 AD3d 1299, explained when an administrative determination is rendered without a hearing, a court’s review "is limited to whether [the determination] is arbitrary, capricious or without a rational basis." Further, said the court, “given that [TRS] is charged with administering the retirement statutes at issue, its interpretations are entitled to deference and should be upheld unless they are irrational, unreasonable or inconsistent with the governing law.”

As a general rule, said the court, "retirement on a pension" causes a person's membership in the retirement system to cease. With respect to an individual receiving a retirement allowance from TRS, Education Law §511(5) permits "Tier 2 disability retirees" to resume active service while still receiving disability retirement benefits subject to certain limitations salary limitations. Such a retiree, however, "shall not become a member of [TRS]."

In contrast, should the retiree be restored to active service at a salary as great as, or greater, than his or her final average salary, "his [or her] retirement allowance shall cease, and he [or she] shall again become a member of [TRS]." Education Law §511[6] provides that such an individual’s "prior service certificate on the basis of which his [or her] service was computed at the time of his [or her] retirement shall be renewed." Upon such individual’s subsequent retirement, he or she "shall be credited" with both the service credit reflected in the prior service certificate and "all [of] his [or her] service as a member subsequent to the period covered by his [or her] prior service certificate"

Finding that TRS’s interpretation of these statutes was rational and reasonable, the Appellate Division concluded that Porco’s membership in TRS cease when she began receiving disability retirement benefits and although she had returned to work during the disputed three months, because her salary did not exceed the statutory cap, Education Law §511(5) explicitly barred her from becoming a member of TRS during that period of time.  

Accordingly, ruled the Appellate Division, TRS’s determination denying years of service credits to Porco for this three-month period would not be disturbed.

Similar rules apply is situations where an individual is receiving a retirement allowance from another New York public retirement system [see §150 of the Civil Service Law, Suspension of pension and annuity during public employment, and, generally, §§210 – 217 of the Retirement and Social Security Law] with respect to the re-employment of such retired individuals in public service of the State or a political subdivision of the State.

* The decision notes that Porco received $6,809.91 in disability retirement benefits as well as her salary during this three-month period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04777.htm

Complimentary webinar “Avoiding and managing the threats of ransomware attacks” scheduled to be held on June 28, 2016

Complimentary webinar “Avoiding and managing the threats of ransomware attacks” scheduled to be held on June 28, 2016

Source: NYMuniblog

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Click on HB Solutions Data Privacy and Cybersecurity Team for information about this  program which is being held in conjunction with Access Advisory Group, leaders in cyber protection technology.

For additional information about the webinar and a link to register for the event, click on

http://hbsolutions.com/wp-content/uploads/Ransomware-Would-You-Trust-a-Thief.pdf

Rather than relying on selective information supplied by the employer, the court itself should review the challenged investigative report relied on by the employer

Rather than relying on selective information supplied by the employer, the court itself should review the challenged investigative report relied on by the employer

2016 NY Slip Op 04422, Appellate Division, Second Department

The petitioner [Petitioner], a tenured teacher, filed a complaint with her employer, a school district, alleging that two teachers in her department were bullying and harassing her. 

Following a preliminary investigation of the complaint by the School District’s Director of Human Resources, the School Board [Board] retained an attorney to conduct an investigation and prepare a written report for the Board's consideration.

Ultimately the Board determined that there was insufficient evidence to conclude that the alleged misconduct rose to the level of "harassment, bullying, discriminatory behavior and/or hostile environment" toward Petitioner.*

Petitioner then commenced a CPLR Article 78 proceeding to review the Board's determination and to compel the production of the investigation report submitted to the Board by the attorney.

Supreme Court denied Petitioner’s motion to annul the Board's determination, but, determining that the Board and the School District had waived any attorney-client privilege as to the investigation report, granted that branch of her petition seeking to compel the production of the report. Both parties appealed from the respective portions of the judgment adverse to them.

The Appellate Division ruled that “under the circumstances,” Supreme Court should have reviewed the investigation report in camera* before determining whether the Board's determination was arbitrary or capricious rather than relying on selective information submitted by the Board and the School District.

Further, said the court, Supreme Court also erred in determining that the Board and the School District had waived the attorney-client privilege with respect to the investigation report without first conducting an in camera review of the report.

Reversing the Supreme Court’s judgment “insofar as appealed and cross-appealed” the Appellate Division remitted the matter to the Supreme Court to conduct an in camera review of the investigation report and then to make a new determinations of the branches of the petition seeking to annul the Board's determination and to compel disclosure of the investigation report.

* The Appellate Division’s decision states that the Board noting that “… the relationship between [Petitioner] and the two other teachers had become an impediment to the effective operation of the …  department … directed the school's administration to take appropriate remedial action, including conducting workplace sensitivity training.

** A review of documents by the court in his or her chambers.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04422.htm

Challenging the denial of a Freedom of Information Law request on the representation that the records are exempt from disclosure

Challenging the denial of a Freedom of Information Law request on the representation that the records are exempt from disclosure

2016 NY Slip Op 04417

The petitioner [Petitioner] in this CPLR Article 78 action had filed a Freedom of Information Law [FOIL] request with the custodian of police department records relating to a recent criminal investigation of allegations concerning events that occurred more than 25 years ago. The custodian of the records denied the request, claiming that the entire case file was exempt from FOIL disclosure.

After an unsuccessful administrative appeal, Petitioner initiated litigation to compel the custodian to produce the case file. Supreme Court denied the petition and dismissed the proceeding. Petitioner appealed the Supreme Court’s decision.

The Appellate Division commenced its review of the Petitioner’s appeal by noting:

1. In a proceeding pursuant to CPLR Article 78 to compel the production of material pursuant to FOIL, the custodian of the records denying access has the burden of demonstrating that the material requested falls within a statutory exemption, which exemptions are to be narrowly construed;

2. The denial requires the entity resisting disclosure to articulate a particularized and specific justification for denying access and conclusory assertions that certain records fall within a statutory exemption are not sufficient; evidentiary support is needed; and

3. If the court is unable to determine whether withheld documents fall entirely within the scope of the asserted exemption, it should conduct an in camera* inspection of representative documents and order disclosure of all nonexempt, appropriately redacted, material.

The Appellate Division also noted that Public Officers Law §87(2)(a) provides that a custodian may deny access to records or portions thereof that "are specifically exempted from disclosure by state** or federal statute" while Civil Rights Law §50-b(1) provides a statutory exemption from disclosure for documents that tend to identify the victim of a sex offense. 

However, said the court, Civil Rights Law §50-b(1) "does not justify a blanket denial of a request for any documents relating to a sex crime. If a requested document does not contain information that tends to identify the victim of a sex crime, and the FOIL request is otherwise valid, the document must be disclosed." Further, the custodian must make a particularized showing that “the statutory exemption from disclosure pursuant to Civil Rights Law §50-b(1) applies to all the records that the petitioner seeks.”

The Appellate Division said that Supreme Court should have conducted an in camera inspection to determine whether the entire case file falls within the exemption from disclosure of Civil Rights Law §50-b(1) as any document in the case file containing identifying information is protected by Civil Rights Law §50-b(1) would be categorically excluded in its entirety and not subject to redaction or deletion.

Accordingly, the Appellate Division remanded the matter to Supreme Court for a new determination based upon the court’s in camera inspection of the records claimed to be exempt from disclosure.  

* An inspection of the documents is to held by the judge in his or her private chambers.

** The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute unless the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the FOIL exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04417.htm