Public policy prohibits an employer from bargaining away its right to remove employees meeting the plain and clear statutory requisites for termination

Public policy prohibits an employer from bargaining away its right to remove employees meeting the plain and clear statutory requisites for termination
Enlarged City Sch. Dist. of Middletown N.Y. v Civil Serv. Empls. Assn., Inc., 2017 NY Slip Op 02421, Appellate Division, Second Department

In this appeal the issue concerned the court's granting of a permanent stay of arbitration of a grievance alleged to have violated a term or condition of the controlling collective bargaining agreement pursuant to CPLR Article 75.

The geneses of the grievance was the termination of an employee pursuant to §71 of the Civil Service Law. §71 provides for Workers' Compensation Leave and authorizes the termination of an individual on such leave after he or she has been "... out of work for a cumulative period of one year or longer.*  The employee, a member of the collective bargaining unit represented by the Civil Service Employees Association [CSEA] contended that his termination while on §71 leave violated certain terms and conditions of the collective bargaining agreement. Ultimately CSEA demanded that the employee's grievance be submitted to arbitration.

Supreme Court denied the school district's petition seeking a permanent stay of the arbitration. The district appealed, contending that submitting the subject matter of the dispute to arbitration was prohibited by public policy. The Appellate Division granted the school district a temporary stay of the arbitration proceeding and ultimately held that "the Supreme Court should have granted the district's petition to permanently stay arbitration."

The Appellate Division explained that although the general policy with respect to collective bargaining agreements favors the resolution of disputes by arbitration, some matters, because of competing considerations of public policy, cannot be heard by an arbitrator and "[p]reemptive judicial intervention in the arbitration process is warranted where the arbitrator [cannot] grant any relief without violating public policy."

Citing Economico v Village of Pelham, 50 NY2d 120 [overruled on other grounds, Matter of Prue v Hunt, 78 NY2d 364], the Appellate Division considered the allegation that the employee's termination was in contravention of his rights under a collective bargaining agreement.

In Economico the issue concerned the termination of a permanent employee on the Civil Service Law §72, Leave for Ordinary Disability, pursuant to §72.4  of the Civil Service Law.  §72.4  provides for such termination at the discretion of the appointing authority in accordance with the provisions of §73 of the Civil Service Law. The Court of Appeals held that "public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination" set out in §72 pursuant to §73.

While §72.4 provides that an employee continuously absent from work for one year or longer pursuant to §72 as the result of a non-work related disability or disease, §71 provides that a public employer may terminate an employee who is absent due to an occupational disability for a cumulative period of one year**  or longer at the discretion of the appointing authority if the employee is physically or mentally unable to return to work.

The Appellate Division concluded that both §71 and §72.4 of the Civil Service Law establish "the point at which injured civil servants may be replaced," as they "strike a balance between the recognized substantial State interest in an efficient civil service and the interest of the civil servant in continued employment in the event of a disability." Thus, said the court, for the same reason that "public policy was implicated in Matter of Economico v Village of Pelham," i.e., the abrogation of the authority granted to a public employer by §72.4 to terminate the disabled employee, "it is implicated in the instant matter," termination of the disabled employee as authorized by Civil Service Law §71.

The Appellate Division said that as an arbitrator would not be able to fashion a remedy that would not violate public policy in this instance, a preemptive stay of arbitration with respect to the employee's grievance is not improper.

N.B. It should be noted that termination pursuant to §71 or §73 is not a pejorative dismissal. An individual terminated from such a leave may, within one year after the termination of his or her disability, apply to the civil service department or municipal commission having jurisdiction over the position last held by the employee for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission and if found medically and physically qualified, he or she is eligible for reinstatement or other relief as provided by law. 

* See Duncan v NYS Developmental Center, 63 NY2d 128

** Where an employee has been separated from the service by reason of a disability resulting from an assault sustained in the course of his or her employment, he or she shall be entitled to a §71 leave of absence for at least two years, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02421.htm

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Unemployment Insurance Appeal Board entitled to determine reasons for dismissing an employee constituted disqualifying misconduct for purposes of eligibility for unemployment insurance benefits

Unemployment Insurance Appeal Board entitled to determine reasons for dismissing an employee constituted disqualifying misconduct for purposes of eligibility for unemployment insurance benefits

Matter of Telemaque (Commissioner of Labor), 2017 NY Slip Op 02109, Appellate Division, Third Department

Veronica Telemaque, an absent reserve teacher for 20 years, was served with disciplinary charges pursuant to Education Law §3020-a for allegedly engaging in misconduct, conduct unbecoming and, or, insubordination and violating the employer's rules. Based upon the Hearing Officer's findings and recommendation, Telemaque was found guilty of the charges and was terminated from her position.

Telemaque then applied for unemployment insurance benefits but her application for such benefits was rejected by the Unemployment Insurance Appeal Board on the ground that she had lost her employment due to her misconduct. Telemaque appealed the Board's determination to the Appellate Division but the court sustained the Board's ruling,

Indicating that "It does not appear that [Telemaque] appealed that disciplinary determination," the Appellate Division ruled that Telemaque's challenges to the merits of the disciplinary determination resulting in her termination may not be raised in her unemployment insurance proceeding.

Further, said the court, the record indicated that Telemaque was [1]  represented by an attorney at the disciplinary hearing who had the opportunity to present evidence and witnesses and to cross-examine the employer's witnesses, and [2] Telemaque had "testified at length" with regard to the charges filed against her at the disciplinary hearing.

The Appellate Division explained that as Telemaque "had a full and fair opportunity to litigate the charges of misconduct at [the disciplinary] hearing," the Unemployment Insurance Appeal Board "properly gave collateral estoppel effect to the Hearing Officer's factual determinations."

Further, said the court, "having properly taken into account those factual findings with regard to [Telemaque's] misconduct, the Board was entitled to make its own independent conclusions as to whether her behavior constituted disqualifying misconduct for purposes of unemployment insurance benefits."

As actions detrimental to an employer's interests and violating the employer's known policies and threatening behavior have been recognized as disqualifying misconduct, the Appellate Division held that the Board's decision to give collateral estoppel effect to the factual findings in the disciplinary determination was not affected by an error of law and its determination that Telemaque had committed disqualifying misconduct was supported by substantial evidence. Accordingly, said the court, the Board's determination "will not be disturbed."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02109.htm

The Commissioner of Education does not have jurisdiction to remove trustees or employees of public library

The Commissioner of Education does not have jurisdiction to remove trustees or employees of public library

Decisions of the Commissioner of Education, Decision #17060

In this appeal the applicant asked the Commissioner of Education to remove "the Library Director and the Board of Trustees" of a public library pursuant to Education Law §306. 

The Commissioner said this aspect of the applicant's appeal "must be dismissed for lack of subject matter jurisdiction," explaining that Education Law §306 authorizes the Commissioner of Education to remove members of a board of education, superintendents and other school officers for willful violations of law or neglect of duty. 

However, said the Commissioner, a public library trustee or a Library Director is not a “school officer” as defined in Education Law §2(13) and such personnel are not among the officers listed in §306.  Accordingly public library personnel are not subject to removal by the Commissioner pursuant to Education Law §306.

The Commissioner then observed that a trustees of a public library, as the trustees of an education corporation, may be removed for misconduct or neglect of duty by the Board of Regents pursuant to Education Law §226(4). *

As to the Commissioner's authority with respect have jurisdiction over a "school officer," the decision notes that Education Law §2[13] defines the term school officer as follows: " The term 'school officer' means a clerk, collector, or treasurer of any school district; a trustee; a member of a board of education or other body in control of the schools by whatever name known in a union free school district, central school district, central high school district, or in a city school district; a superintendent of schools; a district superintendent; a supervisor of attendance or attendance officer; or other elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system.”

* An employee of a public library may be terminated from his or her position or otherwise disciplined by the trustees of a public library acting in their capacity as the appointing authority consistent with administrative due process.

Decision #17,060 is posted on the Internet at: 

http://www.counsel.nysed.gov/Decisions/volume56/d17060

Failure to comply with emergency leave regulations

Failure to comply with emergency leave regulations

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New York City Office of Administrative Trials and Hearings [OATH]  Administrative Law Judge Astrid B. Gloade recommended a 63 day suspension without pay, nine days for each proven charge, for a sanitation worker who failed to comply with emergency leave regulations on seven occasions.

The worker requested emergency leave three times due to car trouble, twice for emergency child care leave, and twice due to plumbing issues. On each occasion the worker failed to submit required documentation regarding his leave requests.

Due to the worker’s extensive disciplinary history, mostly for violating time and leave rules, Judge Gloade reasoned that a penalty at the highest end of the range imposed under similar circumstances was appropriate.

Dep’t of Sanitation v. Perez, OATH Index No. 370/17 (Jan. 20, 2017), modified on penalty, Comm’r Dec. (Feb. 7, 2017) (Commissioner imposed penalty of termination of employment).

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Audits and reports were issued by the New York State Comptroller during the week ending March 31, 2017

Audits and reports were issued by the New York State Comptroller during the week ending March 31, 2017
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Comptroller DiNapoli & A.G. Schneiderman Announce Felony Conviction of Upstate Woman for Pension Fraud and Welfare Fraud

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the conviction of Tammy Banack, a resident of Kirkville, New York, of the crime of grand larceny in the third degree, a class D felony. Banack pleaded guilty before Hon. Stephen J. Dougherty in Onondaga County Court in satisfaction of a five-count indictment handed up against her earlier this month charging her with stealing pension benefits issued to her deceased mother and fraudulently obtaining $19,000 in welfare benefits from the Onondaga County Department of Social Services.

Preschool Special Education Provider Received Nearly $6 Million for Ineligible Expenses

A Manhattan-based preschool for children with disabilities charged the State Education Department nearly $6 million for expenses that did not qualify for taxpayer reimbursement, State Comptroller Thomas P. DiNapoli announced. DiNapoli's auditof New York League for Early Learning Inc. focused on $138 million in expenses the school claimed for special education services over the three fiscal years ended June 30, 2014.

Comptroller DiNapoli and Mayor Brown Return Over $100,000 in Unclaimed Funds to Buffalo Residents

New York State Comptroller Thomas P. DiNapoli announced that $111,180 in unclaimed funds has been returned to Buffalo city residents since he partnered with Mayor Byron Brown on March 16 to urge people to claim their lost money. Over $88 million still remains available for residents to claim. 

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the

East Hampton Housing Authority – Board Oversight

Eggertsville Fire District – Financial Activity

Mastic Beach Fire District - Cash Disbursements

Town of Moira – Fiscal Oversight and Selected Financial Operations

Town of Oxford – Financial Management and the

Town of Somerset - Budgeting for Sales Tax.