The Doctrine of Collateral Estoppel does not bar litigating claims involving the same parties that were not previously considered in prior administrative or judicial actions

The Doctrine of  Collateral Estoppel does not bar litigating claims involving the same parties that were not previously considered in prior administrative or judicial actions

Mehulic v New York Downtown Hosp., 2017 NY Slip Op 06416, Appellate Division, First Department

Following a number of adverse administrative rulings, Surana Mehulic brought an Article 78 action against her former employer, New York Downtown Hospital [Hospital] alleging it had impermissibly retaliated against her for whistle blowing. Supreme Court dismissed her amended complaint, ruling that Mehulic's retaliation claim under Labor Law §741 "is completely barred by [the doctrine of] collateral estoppel".*

The Appellate Division unanimously reversed the Supreme Court's ruling explaining that with respect to the earlier administrative determinations "there was no express or implied ruling that [Hospital], in terminating Mehulic, "had impermissibly retaliated against her for whistle blowing."

The court explained that the issue of whether the Hospital terminated Mehulic because she reported inadequate medical care to her supervisors, and later, the Department of Health was not at issue in the prior administrative proceedings and related article 78 proceeding. Accordingly, said the Appellate Division, the issue of alleged retaliation "was not necessarily decided in the prior proceedings."

The earlier proceedings were initiated by the Department of Health's Office of Professional Medical Conduct to determine whether Mehulic, then a not yet licensed second-year medical resident, should be able to pursue a medical license in New York, and under what conditions.

Although, said the Appellate Division, the prior administrative rulings determined that Mehulic had engaged in professional incompetence on three occasions, there was no express or implied ruling that Hospital had terminated Mehulic's employment on the basis of that incompetence, or whether, in terminating her, Hospital had impermissibly retaliated against her for whistle blowing.

Citing Mehulic v State Board of Professional Medical Conduct, 107 AD3d 1066,  appeal dismissed 22 NY3d 911, the Appellate Division ruled that although Mehulic is precluded from relitigating the three instances of incompetence found in the prior proceedings, the Doctrine of Collateral Estoppel does not otherwise bar the litigation of her retaliation claims. Her defense, noted the Appellate Division, to Hospital's prima facieshowing that the "termination of [Mehulic's] employment was predicated upon grounds other than her exercise of any rights under Labor Law," she had "submitted evidence sufficient to raise triable issues of fact."

* §75-b of the Civil Service Law bars retaliatory action by public employers against a public employee for his or her alleged whistle blowing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06416.htm

Procedural errors to avoid in an appeal submitted to the Commissioner of Education

Procedural errors to avoid in an appeal submitted to the Commissioner of Education

Decisions of the Commissioner of Education, Decision No. 17,166

In this appeal the School District contended, among other things, that the Petitioner's application was untimely, constituted a "class appeal," and that the Petition had not been properly verified. In addition, with respect to Petitioner's reply, the School District claimed that it "should not be considered to the extent it raises new assertions or contains new exhibits."

The School District's objection to a "class appeal"

Addressing the issue of a "class appeal", the Commissioner said Petitioner's attempt to bring this appeal on behalf of individuals who “either reside or own properties within" the School District, such an appeal may only be maintained on behalf of a class where [1] the class is so numerous that joinder of all members is impracticable and [2] where all questions of fact and law are common to all members of the class.

The Commissioner denied class status, explaining that other than identifying the proposed class as residents or property owners within the district, Petitioner’s pleadings did not include any allegations meeting the requirements for a class appeal set out in 8 NYCRR §275.2.  In particular, the Commissioner noted that the Petitioner failed to identify the number of class members and offered no explanation of how all questions of fact and law would be common to all residents and property owners of the School District.

The School District's Objection to the verification of the petition

With respect to the School District 's claim that the petition was not properly verified, the Commissioner, citing 8 NYCRR §275.5[a], said that such a petition must be verified by the oath of a petitioner. However, in this instance the petition had been verified by the attorney for the Petitioner and the attorney was not a party to the appeal. Accordingly, said the Commissioner, the verification was improper.

The School District's objection to the Petitioner's reply

As to the School District's objections with respect to Petitioner's reply, the Commissioner said the Petitioner's “Reply Affidavit” included additional facts and exhibits concerning the School District that were not in the petition.

A reply, said the Commissioner, "is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition." Accordingly, the Commissioner said that she would not considered those portions of the reply that contained "new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer" in her review of Petitioner's reply.

Finally, the Commissioner ruled that the petition was timely but that even had not be dismissed on procedural grounds, "it would be dismissed on the merits."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17166

Court of Appeals to determine whether the Taylor Law trumps Second Class Cities Law with respect to negotiating police disciplinary procedures

Court of Appeals to determine whether the Taylor Law trumps Second Class Cities Law with respect to negotiating police disciplinary procedures

Appeal of Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 136 AD3d 1086

N.B. The Court of Appeals reversed the Appellate Division's ruling in 134 AD3d 1086. See City of Schenectady v New York State Pub. Empl. Relations Bd., 2017 NY Slip Op 07210, Court of Appeals, Decided on October 17, 2017.

The City of Schenectady [Schenectady], under color of §133 of Article 9 of Second Class Cities Law, announced that it would no longer be bound by negotiated police disciplinary procedures then set out in a collective bargaining agreement between Schenectady and the Schenectady Police Benevolent Association [PBA].

PBA filed an improper practice charge with Public Employment Relations Board [PERB] alleging that Schenectady violated Civil Service Law §209-a(1)(d) of the Public Employees' Fair Employment Act [Article 14 of the Civil Service Law], the so-called “Taylor Law," and ultimately the Appellate Division held that the Taylor Law trumps Second Class Cities Law Article 9 with respect to negotiating police disciplinary procedures.* 

Citing 46 PERB 3025, the Appellate Division said "PERB aptly noted in its decision" that §4 of the Second Class Cities Law  states that a provision of this statute  "such as article 9 containing its police disciplinary procedures shall apply only until such provision is superseded pursuant to the municipal home rule law, was superseded pursuant to the former city home rule law or is or was otherwise changed, repealed or superseded pursuant to law" and that such language "reveals a statutorily planned obsolescence for [the Second Class Cities Law] resulting from subsequent enactment of state or local legislation."

Schenectady appealed the Appellate Division's ruling, which appeal was argued before the Court of Appeals on September 6, 2007.

In Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFLCIO, Town of Wallkill Police Dept. Unit, Orange County Local 836), 19 NY3d 1066, the Court of Appeals said that negotiating such disciplinary procedures is a "prohibited subject of collective bargaining" with respect to a town and an employee organization representing the police officers of the town, apparently rejecting characterizing such negotiations as a "non-mandatory subject of collective bargaining" within the meaning of the Taylor Law.**

It should be noted that the State's authority for supplementing, modifying or replacing Civil Service Law §75 disciplinary procedures pursuant agreements negotiated with an  employee  organization  pursuant  to the Taylor Law with respect to State officers and employees of the State as the employer is set out in §76.4 of the Civil Service Law.***

§76.4, however, is silent with respect to authorizing a political subdivision of the State as the employer to negotiate supplementation, modification or replacement of  Civil Service Law §75 in the course of collective bargaining between the political subdivision of the State and  an  employee  organization with respect to the political subdivision's  employees in collective bargaining units pursuant to the Taylor Law.

Typically legislation addressing public officers and employees of the State of New York as the employer with respect to personnel matters such as health insurance does not automatically extend to officers and employees of a political  subdivision of the  State and  a political subdivisions of  the State is typically given the option of electing to extend such personnel matters to its officers and employees.

For example, §161.1 of the Civil Service Law authorizes the president of the New York State Civil Service Commission to establish a health benefit plan, commonly referred to as the New York State Health Insurance Program [NYSHIP], for state officers and employees, retirees and their dependents and the employees, retirees and their dependents of certain other entities such as the Statutory Contract Colleges at Cornell and Alfred Universities.

In contrast, §163.4 of the Civil Service Law permits "[a]ny public authority, public benefit corporation, school district, special district, district corporation, municipal corporation, or other agency, subdivision or quasi-public organization of the state to elect to participate in NYSHIP." This is accomplished by the municipality's governing body adopting a resolution "and, in the case of any municipal  corporation where a resolution of its governing body is required by law  to be approved by any other body or officer, such resolution shall also  be approved by such other body or officer."

How do you think the high court will decide Schenectady's appeal, and why? Will it follow its ruling in Town of Wallkill v Civil Serv. Empls. Assn., Inc., 19 NY3d 1066,**** in which it held that negotiating such disciplinary procedures is a "prohibited subject of collective bargaining" with respect to a town and an employee organization representing the police officers of the town" or will it sustain the ruling of the Appellate Division, holding that the PERB was correct in concluding that Taylor Law trumps the Second Class Cities Law when negotiating police disciplinary procedures are concerned?

* The decision, City of Schenectady v New York State Pub. Empl. Relations Bd., 136 AD3d 1086, posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_00729.htm

** NYPPL's summary of this ruling is posted on the Internet at:

https://publicpersonnellaw.blogspot.com/2012/10/negotiating-disciplinary-procedures.html

*** §76.4 provides: Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter. Where such sections are so supplemented, modified or replaced, any employee against whom charges have been preferred prior to the effective date of such supplementation, modification or replacement shall continue to be subject to the provisions of such sections as in effect on the date such charges were preferred.

**** See, also, Patrolmen's Benevolent Assn. of City of N.Y., Inc. v PERB., in which the Court of Appeals held that "police discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials." posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_02288.htm

Unemployment Insurance Appeal Board may reject an application for unemployment insurance benefits based on its finding the Claimant's employment was terminated due to disqualifying misconduct

Unemployment Insurance Appeal Board may reject an application for unemployment insurance benefits based on its finding the Claimant's employment was terminated due to disqualifying misconduct

2017 NY Slip Op 02109, Appellate Division, Third Department

A Claimant for unemployment insurance benefits appealed a decision of the Unemployment Insurance Appeal Board that found that she was disqualified from receiving unemployment insurance benefits because her employment was terminated due to her misconduct.

Claimant had been found guilty of disciplinary charges filed against her pursuant to §3020-a of the Education Law. The charges alleged that  she had engaged in misconduct, conduct "unbecoming and/or prejudicial," insubordination and violating the employer's rules.

The Department of Education's §3020-a hearing officer found Claimant guilty of the charges and specification filed against and based on the Hearing Officer's findings, Claimant's employment was terminated by her employer.

Claimant then appealed the Unemployment Insurance Appeal Board's decision, challenging the Unemployment Insurance Appeal Board's Hearing Officer's factual and credibility determinations. Essentially Claimant contended that there evidentiary errors were made at the disciplinary hearing.

The Appellate Division, noting that it did not appear that Claimant appealed the §3020-a hearing officer's disciplinary determination, said that her challenges concerning the merits of the disciplinary hearing officer's determination may not be raised in this unemployment insurance proceeding. The court said that the record indicated that Claimant was represented by an attorney at the §3020-a disciplinary hearing and her  attorney "had the opportunity to present evidence and witnesses and to cross-examine the employer's witnesses" in that forum. In addition, Claimant testified at length with regard to the charges and specifications filed against her.

In view of the fact that Claimant had "a full and fair opportunity to litigate the charges of misconduct at that hearing," the Appellate Division said that the Board "properly gave collateral estoppel* effect to the [§3020-a] Hearing Officer's factual determinations." In addition, having taken into account the factual findings concerning Claimant's misconduct, the court said that the Board "was entitled to make its own independent conclusions as to whether [Claimant's] behavior constituted disqualifying misconduct for the purposes of [determining her eligibility for] unemployment insurance benefits."

Finding that the Board's decision to give "collateral estoppel effect" to the factual findings in the disciplinary hearing was not affected by an error in law and its finding that Claimant had committed disqualifying misconduct was supported by substantial evidence, the Appellate Division ruled that it determination would not be disturbed.

* The Doctrine of Collateral Estoppel stands for the proposition that a decision between parties is conclusive as to the issues or controverted points adjudicated by a tribunal having jurisdiction and may not be relitigated by the same parties in a subsequent proceeding involving the same issue or issues in a different forum.

The decision is posted on the Internet at:

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

New York City employee found guilty of used his employer's telephone and computer equipment for his political campaign while at work

New York Cityemployee found guilty of used his employer's telephone for his political campaign while at work

Oberman v New York City Conflicts of Interest Bd., 2017 NY Slip Op 02366, Appellate Division, First Department

Accepting the findings and recommendation of a New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge [ALJ], the New York City Conflicts of Interest Board found Igor Oberman guilty of having violated New York City Charter §2604(b)(2) and 53 RCNY §1-13(a) and (b), as the result of his using his employer's telephone in connection with his political campaign activities while at work and ordered him to pay a civil penalty of $7,500.* The ALJ, however, found that Oberman's employer failed to prove that he had used the employer's computer during business hours to work on his political campaign. 

§2604(b)(2) provides that "No public servant shall engage in any business, transaction or private employment, or have any financial or other private interest, direct or indirect , which is in conflict with the proper discharge of his or her official duties" while 53 RCNY §1-13(a) and (b), respectively, provide as follows:

   (a) Except as provided in subdivision 3 of this section, it shall be a violation of City Charter §2604(b)(2) for any public servant to pursue personal and private activities during times when the public servant is required to perform services for the City.

   (b) Except as provided in subdivision 3 of this section, it shall be a violation of City Charter §2604(b)(2) for any public servant to use City letterhead, personnel, equipment, resources, or supplies for any non-City purpose.

With respect to the penalty to be recommended by the Administrative Law Judge, Oberman contended that he suffered financial hardship due to his being terminated from his position and his failed run for elected office. The ALJ said that was there no proof with respect to Oberman's claims of financial hardship and opined that Oberman's "good work" in his former employment "is not compelling mitigation." However, said the ALJ, Oberman's "termination from employment should be factored into a penalty determination" and the Board's imposing a $7,500 civil penalty "takes into account the Board’s precedent, the aggravating and mitigating factors, and it comports with the Board’s deterrent function."

Oberman appealed the Board's determination and the penalty it imposed. The Appellate Division unanimously confirmed the Board's ruling

The court held that the Board's determination was supported by substantial evidence and there was no basis to disturb the credibility determinations of the Administrative Law Judge made at the Oberman's administrative hearing. Further, said the Appellate Division, "strong circumstantial evidence" including records of numerous calls involving Oberman's work telephone and donations to Oberman's political campaign raised a reasonable inference that Oberman used his public employer's resources for private purposes, "in violation of Charter §2604(b)(2) and 53 RCNY § 1-13(a) and (b)."

Citing Kelly v Safir, 96 NY2d 32, the Appellate Division held that the penalty was not shockingly disproportionate to the offense "in light of the extent of [Oberman's]  misconduct, the warnings he had received against such misconduct, his failure to accept responsibility, and the high ethical standards to which he was held as an attorney."

* The administrative hearing findings and recommendation of the OATH Administrative Law Judge [OATH Index No. 1657/14]  and the decision of the City of New York Conflicts of Interest Board, COIB Case No. 2013-609, are both posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-1657.pdf

The Appellate Division's decision is posted on the Internet at

http://www.nycourts.gov/reporter/3dseries/2017/2017_02366.htm