New York courts use a "two-prong" test to determine if a dispute between a public sector employer and public sector employees may be submitted to arbitration

New York courts use a "two-prong" test to determine if a dispute between a public sector employer and public sector employees may be submitted to arbitration

Village of Garden City v Professional Firefighters Assn. of Nassau County, Local 1588, 2017 NY Slip Op 04849, Appellate Division, Second Department

The Village of Garden City sought to permanently stay arbitration of an alleged violations of a collective bargaining agreement [CBA] demanded by the employee organization, contending that the grievance at issue was not subject to arbitration because [1] the provisions alleged to have been violated were not a part of the parties' CBA; [2] the provisions involved did not contain its own arbitration clause; [3] the matters in dispute were not binding due to improper execution or expiration; and [4] public policy barred arbitration of the dispute.

In contrast, the Association moved to compel arbitration, arguing that the agreements it relied upon in its demand for arbitration constituted an addendum to the CBA and, thus, were subject to arbitration.

The Supreme Court determined that [1] arbitration of the dispute was not against public policy and [2] that the dispute was subject to the arbitration provisions in the parties' CBA. The Village appealed Supreme Court's granting the Association's motion to compel arbitration.

Citing Locust Val. Cent. Sch. Dist. v Benstock, 144 AD3d 758, the Appellate Division said that "The determination of whether a dispute between a public sector employer and [its] employee is arbitrable is subject to [a] two-prong test."

First, the court must determine whether there is any statutory, constitutional or public policy prohibition against arbitration [of] the grievance."

Second, should the court determine that there is no such prohibition against arbitrating the dispute, it must examine the parties' collective bargaining agreement and determine if they, in fact, agreed to arbitrate the particular matter in dispute.

The Appellate Division then explained that in examining the collective bargaining agreement the court merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the agreement. Should the court rule the matter arbitrable, the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA and whether the subject matter of the dispute fits within them.

Further, the Appellate Division observed that a court "may not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute."

In this instance the Appellate Division ruled that Supreme Court correctly held that public policy does not prohibit arbitration of the Association's grievance alleging that the Village violated certain procedures and that it also correctly held that the Association's grievance was reasonably related to the general subject matter of the CBA. Thus, the question of the scope of the substantive provisions of the CBA is a matter of contract interpretation and application reserved for the arbitrator.

Accordingly, the Appellate Division sustained the lower court's granting the Association's motion to compel arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04849.htm

Should an entity grants a request to postpone an administrative hearing, it is required take appropriate action to reschedule the hearing

Should an entity grants a request to postpone an administrative hearing, it is required take appropriate action to reschedule the hearing

Doe v Onondaga County, 2017 NY Slip Op 04697, Appellate Division, Fourth Department

Jane Doe initiated an Article 78 action against Onondaga County and the Onondaga County Department of Social Services [Onondaga County].

Onondaga County asked Supreme Court to dismiss Doe's complaint contending Doe failed to comply with the provisions set out General Municipal Law §50-h as she failed to comply with its demand for a hearing pursuant to General Municipal Law §50-h.

Supreme Court denied Onondaga County's motion and the County appealed.

Citing Legal Servs. for the Elderly, Disabled, or Disadvantaged of W. N.Y., Inc. v County of Erie, 125 AD3d 1321, the Appellate Division said that "It is well settled that a plaintiff who has not complied with [the requirements set out in] General Municipal Law §50-h(5) is precluded from maintaining an action against a [county]."

However, §50-h(5) also provides, as here relevant, that "[t]he action, however, may not be commenced until compliance with the demand for examination if the claimant fails to appear at the hearing or requests an adjournment or postponement beyond the ninety day period. If the claimant requests an adjournment or postponement beyond the ninety day period, the city, county, town, village, fire district or school district shall reschedule the hearing for the earliest possible date available."

The Appellate Division pointed out that Doe was in compliance with the statute as after Onondaga County demanded a General Municipal Law §50-h(5) hearing, Doe requested and was granted an adjournment of that hearing.

Contrary to the Onondaga County's contention, the Appellate Division said that it was incumbent upon the County to reschedule the adjourned hearing. Accordingly Supreme Court correctly denied Onondaga County's motion to dismiss Doe's petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04697.htm

Determining if a complaint alleging sexual harassment based a claim of a continuing violation of New York State's Human Rights Law is timely

Determining if a complaint alleging sexual harassment based a claim of a continuing violation of New York State's Human Rights Law is timely

Lozada v Elmont Hook & Ladder Co. No. 1, 2017 NY Slip Op 04845, Appellate Division, Second Department

Beatrice Lozada, a former volunteer firefighter with the Elmont Hook and Ladder Company No. 1 [Elmont], filed administrative complaints against Elmont with the New York State Division of Human Rights [DHR] alleging that she had been subjected to a hostile work environment as the result of sexual harassment.

After a hearing, the DHR Adjudication Counsel [AC] determined that although the acts of sexual harassment that occurred during Lozada's early service with Elmont "clearly" constituted a hostile work environment, those acts occurred outside of the applicable one-year statute of limitations period set out in Executive Law §297(5). In addition, the AC determined that Lozada had failed to establish a continuing violation concluding that her hostile work environment claim was time-barred.

The Commissioner adopted the AC's findings and recommendation that Lozada's complaint be dismissed. In response, Lozada initiated an Article 78 proceeding challenging the Commissioner's decision with respect to the Commissioner's finding that her hostile work environment claim based upon sexual harassment was untimely.

The Appellate Division sustained the Commissioner's decision, which it found was supported by substantial evidence and was not arbitrary and capricious. The court explained that a review of the record demonstrated that the Commissioner's determination that Lozada failed to establish a continuing violation and thus her sexual harassment claim based a hostile work environment relying the Doctrine of Continuing Violation was misplaced. 
    

Although Lozada did establish the existence of a hostile work environment based on incidents of sexual harassment, the court noted that those incidents occurred outside the limitations period and Lozada failed to prove that a specified related incident took place within the limitations period required to invoke the Continuing Violation Doctrine.

The court explained that a hostile work environment claim is subject to a one-year statute of limitations and a hostile work environment claim, by its very nature, is predicated on a series of separate acts that collectively constitute an unlawful discriminatory practice.

Case law considering the Doctrine of a Continuing Violation indicates that the Doctrine is triggered even though one or more of those unlawful acts might have occurred outside of the limitations period so long as at least one of unlawful acts occurred within the limitations period.

Considering the viability of relying on the Doctrine of Continuing Violation in adjudicating a hostile work environment claim, in Strauss v New York State Dept. of Educ., 26 AD3d 67, the court held that "[i]n the case of a hostile work environment claim, the statute of limitations requires that only one sexually harassing act demonstrating the challenged work environment occur within [the statutory period]" and that "once that is shown, a court . . . may consider the entire time period of the hostile environment in determining liability."

Finding that there was no basis to vacate the Commissioner's determination in this instance, the Appellate Division dismissed Lozada's appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04845.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 24, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 24, 2017

Click on text highlighted in color  to access the full report

Public Drinking Water Needs More Protection
New York's public water supplies need stronger protections to ensure clean drinking water and prevent contamination that could result in health problems, according to a reportby State Comptroller Thomas P. DiNapoli.

Former Mahopac VFD Treasurer Sentenced After $5.6 Million Embezzlement

State Comptroller Thomas P. DiNapoli and Joon H. Kim, the Acting United States Attorney for the Southern District of New York, announced that Michael Klein, the former treasurer of the Mahopac Volunteer Fire Department (MVFD), was sentenced by U.S. District Judge Cathy Seibel to 77 months in prison for wire fraud, subscription to false tax returns, obstruction of the grand jury, and false statement charges arising out of his embezzlement of more than $5.6 million from the MVFD.

DiNapoli Announces State Contract and Payment Actions for May 2017

State Comptroller Thomas P. DiNapoli announced his office approved 1,531 contracts valued at $14 billion and approved nearly 2.3 million payments worth more than $12 billion in May. His office also rejected 219 contracts and related transactions valued at $400 million and nearly 1,900 payments valued at more than $7 million due to fraud, waste or other improprieties.


New York StateComptroller Thomas P. DiNapoli announced his office completed audits of

Chestertown Volunteer Fire Company,

Town of Ithaca and the

Town of Smithtown.

OATH disciplinary hearing held in absentia

OATH disciplinary hearing held in absentia 

OATH Index #728/17

A tax auditor was charged with misconduct and incompetence for performing her duties in an inefficient manner, being discourteous to her supervisor, and time and leave violations.

The auditor failed to appear at trial and the matter proceeded by inquest. Based on credible testimony from a supervisor and documentary evidence, ALJ Addison sustained the charges.

Judge Addison found that the auditor’s persistent unwillingness to perform her tasks constituted incompetence as well as misconduct and recommended that the auditor be terminated from her employment.

Posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-728.pdf

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more information click on http://booklocker.com/books/5215.html

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