The judicial test for determining if a grievance involving a term or condition set out in a collective bargaining agreement is arbitrable

The judicial test for determining if a grievance involving a term or condition set out in a collective bargaining agreement is arbitrable

Matter of the Arbitration between Lewis County and CSEA Local 1000, AFSEME, AFL-CIO, Lewis County Sheriff's Employees Unit #7250-03, Lewis County Local 825, 2017 NY Slip Op 06743, Appellate Division, Fourth Department

The Lewis County Sheriff appointed one of three part-time dispatchers in the collective bargaining unit represented by CSEA Local 1000, AFSEME, AFL-CIO, Lewis County Sheriff's Employees Unit #7250-03, Lewis County Local 825 [Local 825] to the position of full-time dispatcher. Local 825 filed grievances on behalf of the two part-time dispatchers not selected for the full-time position, alleging that these two dispatchers had more seniority and experience than the part-time dispatcher selected for the full-time position by the Sheriff.

Lewis County denied the grievances and Local 825 filed demands for arbitration.* In response, Lewis County filed a CPLR Article 75 petition seeking a court order permanently staying the arbitration contending that the grievances were not the proper subject of arbitration." Supreme Court granted Lewis County's petition for a permanent stay of arbitration with respect to D.H.'s grievance and Local 825 appealed the ruling to the Appellate Division.

The Appellate Division said it agreed with Local 825 that Supreme Court erred in granting Lewis County's petition, explaining in City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, the Court of Appeals set out a two-pronged test to determine "whether a grievance is arbitrable."

Applying the first prong, usually referred to as "the may-they-arbitrate' prong," the court determines whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." If the court concludes that arbitration is not so prohibited, it proceeds and considers "the second prong, known as "the did-they-agree-to-arbitrate' prong," in which the court examines the collective bargaining agreement [CBA] "to determine if the parties have agreed to arbitrate the dispute at issue".

As Lewis County did not claim that the arbitration of D.H.'s grievance is prohibited because of a statutory, constitutional or public policy prohibition against arbitration of the grievance, the Appellate Division said that it was only concerned applying the second prong of the test set by the Court of Appeals in Johnstown Police, the "did-they-agree-to-arbitrate' prong,"

With respect this second test, the court said "[i]t is well settled that, in deciding an application to stay or compel arbitration ... the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim." Citing Matter of Van Scoy [Holder], 265 AD2d 806, the Appellate Division said that "[w]here, as here, there is a broad arbitration clause and a reasonable relationship 'between the subject matter of the dispute and the general subject matter of the parties' [CBA], the court should rule the matter arbitrable, and 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."

In this instance the grievance concerned the determination of the appointing authority with respect to which one of three employees should be given the full-time position. Holding that "a reasonable relationship exists between the subject matter of the grievance and the general subject matter of the CBA," the Appellate Division ruled that "it is for the arbitrator to determine whether the subject matter of the dispute falls within the scope of the arbitration provisions of the [CBA]."

* The demand for arbitration was withdrawn with respect to one of the part-time dispatchers. The Local's demand to compel arbitration on behalf of the remaining part-time dispatcher, D.H., survived.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06743.htm

Liability for the acts or omissions of a deputy sheriff

Liability for the acts or omissions of a deputy sheriff

Jones v Seneca County et al, 2017 NY Slip Op 07084, Appellate Division, Fourth Department

Jacqueline M. Jones commenced an action seeking to recover damages for injuries she allegedly sustained as a result of an encounter with Deputy Frank Eldredge, a Sheriff's deputy employed by Seneca County. Supreme Court granted Seneca County's motion for summary judgment dismissing the complaint.

The Appellate Division affirmed the Supreme Court's decision noting its prior decisions holding that "[a] county may not be held responsible for the negligent acts of the Sheriff and his [or her] deputies on the theory of respondeat superior,* in the absence of a local law assuming such responsibility."

Referring to the 1989 amendment to New York Constitution of Article XIII, §13(a), the so-called Flaherty Amendment,** the Appellate Division said that although the amendment "allows a county to accept responsibility for the negligent acts of the Sheriff[, it does not impose liability upon the county for the acts of the Sheriff or his [or her] deputies on a theory of respondeat superior." Further, said the court, Seneca County had established that it did not assume such responsibility by local law.

Jones also argued that Seneca County had "nevertheless assumed responsibility for the acts of its Sheriff's deputies when it entered into a collective bargaining agreement [CBA] with the Seneca County Sheriff's Police Benevolent Association." 

The Appellate Division rejected Jones' contention that the CBA provides for indemnification of employees from judgments and settlements of claims arising from actions taken within the scope of such employees' public employment and duties and opined "a CBA is not a local law*** and, in any event, the language of the CBA here does not expressly provide that defendant will assume responsibility for the tortious acts of its Sheriff's deputies."

* The Doctrine of Respondeat Superior provides that an employer or principal is legally responsible for the wrongful acts or omissions of an employee or an agent.

** Article XIII, §13(a) as amended, is sometimes referred to as the "Flaherty Amendment." The term "Flaherty deputies" was applied to certain employees of the sheriff following a decision by the Court of Appeals holding that the fact that the sheriff was personally liable for the acts of his or her civil deputies required their exemption from the civil service system of selection, appointment and promotion (Flaherty v Milliken, 193 NY 564). "Flaherty deputy sheriffs" -- civil deputies, as distinguished from "criminal deputy sheriffs" -- had been then exempted from the civil service merit system mandates on the authority of Flaherty v Milliken. Article XIII, §13(a) of the State Constitution, as amended in 1989, deleted the words "The county shall never be made responsible for the acts of the sheriff." As the amendment then allowed a county to assume liability for the acts of a sheriff's civil deputies, the State Department of Civil Service reasoned that where a county had assumed such liability the rationale for the exemption of "Flaherty deputies" from the merit and fitness requirements for such public employment was no longer valid. Accordingly, it was determined that effective January 1, 1990, Civil Service examinations would be required for the appointment and promotion of such civil deputies, i.e., civil deputies of a sheriff where the county has assumed liability for the acts or omissions of a sheriff's civil deputies in the performance of his or her duties. See, also, Hondzinski v. County of Erie, 57 NY2d 715, a decision addressing the "determining the seniority of a "Flaherty deputy sheriff" who had been grandfathered into the competitive class" in the event of a layoff.

*** Subdivision 2 of Public Officers Law §18, "Defense and indemnification of officers and employees of public entities," provides, in pertinent part, for an entity "whose governing body has agreed by the adoption of local law, by-law, resolution, rule or regulation (i) to confer the benefits of this section upon its employees, and (ii) to be held liable for the costs incurred under these provisions."

The Jones decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07084.htm

Flaherty v Milliken is posted on the Internet at:
https://www.courtlistener.com/opinion/3626014/matter-of-flaherty-v-milliken/

The custodian of a record destroying or altering it so as to make it unavailable for use in litigation may result in sanctions being imposed of the custodian

The custodian of a record destroying or altering it so as to make it unavailable for use in litigation may result in sanctions being imposed of the custodian

Zacharius v Kensington Publ. Corp., 2017 NY Slip Op 06995, Appellate Division, First Department 

Spoliation is the destruction or alteration of a document that makes it unavailable for use as evidence in a legal proceeding. Further, spoliation is presumed to be damaging to the spoliator's interest with respect to proving his or her claims or his or her defenses when it is intentionally changed, modified, deleted or destroyed.

In Matter of Klikocki (NYS Department of Corrections, Mount McGregor), 216 AD2d 808, the Appellate Division decided that evidence Klikocki claimed would be helpful in his defense in a disciplinary action that the employer had destroyed had not been destroyed in an effort to conceal something but rather occurred in accordance with the normal procedure concerning the retention or destruction of certain records after they had been retained for a specified period of time.

In contrast, in Zacharius [Plaintiff] Supreme Court's granted Kensington's [Defendant]  motion for spoliation sanctions to the extent of directing Plaintiff to pay the attorneys' fees and costs incurred by Defendants in reviewing Plaintiff's e-mail account and in preparing the motion seeking sanctions for spoliation. Supreme Court's ruling was unanimously affirmed by the Appellate Division, with costs.

The Appellate Division held that the spoliation sanctions imposed by Supreme Court  were providently granted as the record demonstrated that Plaintiff, an attorney, was in control of the email account at issue; was aware of Plaintiff's obligation to preserve it at the time it was destroyed, with or without service of Defendants' litigation hold notice as Plaintiff [1] had commenced the action; and [2] had a "culpable state of mind," demonstrated by admitted to having intentionally deleted well over 3,000 emails during the pendency of the action.

In the words of the Appellate Division, "Destroyed evidence is automatically presumed 'relevant' to the spoliator's claims when it is intentionally deleted." The court noted that although Plaintiff asserted only "irrelevant emails" were deleted, Plaintiff's own emails "evidenced intentional deletion of thousands of emails" and Defendants recovered at least one email that was pertinent to the allegations in Plaintiff's complaint.

Under the circumstances, said the Appellate Division, Supreme Court "providently exercised its discretion in limiting the sanction against Plaintiff to costs and attorneys' fees, rather than the "drastic remedy" of striking Plaintiff's complaint as the Defendants were "not entirely bereft of evidence tending to establish [its] position."

Another element to consider: Is the custodian of the record required by law to retain the record for a minimum period of time?

For example, EEOC regulation implementing Title VII [42 USC 2000e-8(c)] requires “every employer ... subject to this subchapter” to “(1) make and keep such records relevant to the determinations of whether unlawful employment practices have been or are being committed, [and] (2) preserve such records for [two years].”

In Byrnie v Town of Cromwell Board of Education, CA2, 243 F.3d 93, Judge Rosemary S. Pooler said that “where, as here, a party has violated an EEOC record-retention regulation, a violation of that regulation can amount to a breach of duty necessary to justify a spoliation inference in an employment discrimination action.” As the Byrnie decision demonstrates, an employer's failure to retain these records for the statutory minimum period required may become a critical element in the course of litigation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06995.htm

Seeking relief from judgment from a tribunal other than the one that handed down the judgment

Seeking relief from judgment from a tribunal other than the one that handed down the judgment

Cherry v. New York City Department of Correction, USCA, 2nd Circuit, Docket No. 16-3725

Bernard Cherry was terminated from his position with the NYC Department of Corrections [DOC] after an administrative law judge [ALJ] at the Office of Administrative Trials and Hearings [OATH] found him guilty of excessive absenteeism and failure to comply with orders. Cherry appealed the ALJ's findings and recommendation and the Appellate Division on the New York State Supreme Court affirmed the administrative action resulting in Cherry's dismissal from his position.

Cherry subsequently sued New York City, DOC, and several officials, asserting claims for employment discrimination in federal district court. The federal district court dismissed that case on timeliness grounds, and Second Circuit Court of Appeals affirmed the lower court's ruling. Cherry, proceeding pro se,* next filed this action under Federal Rules of Civil Procedure 60(d)(1) and (3), alleging that DOC committed fraud on the court by submitting forged documents during the OATH hearing.

Although the district court interpreted Cherry’s complaint as a request to vacate the judgment in Cherry’s earlier employment discrimination suit in the instant appeal Cherry subsequently clarified that "he was actually asking the district court to vacate the OATH decision."

The Second Circuit, noting that it must "construe pro se complaints “liberally and interpret them ‘to raise the strongest arguments that they suggest," said that "Cherry explicitly states that he was requesting the district court to vacate the judgment of the state administrative law judge."

Accordingly, the Second Circuit said that it lacked subject matter jurisdiction. and dismissed Cherry's action seeking to vacate the ALJ's determination.

The court explained that the plaintiff bears the burden of establishing subject matter jurisdiction over his own claims. Here, said the Circuit Court of Appeals, there is no diversity jurisdiction under 28 U.S.C. §1332 nor is there federal question jurisdiction under 28 U.S.C. §1331.

Cherry cited  Federal Rules of Civil Procedure 60(d)(1) and (3) in his brief in support of his petition but the Second Circuit, citing Cresswell v. Sullivan & Cromwell, 922 F.2d 60, pointed out that "it is well-settled that the Federal Rules of Civil Procedure 'do not provide an independent ground for subject matter jurisdiction over an action for which there is no other basis for jurisdiction.'”**

Noting that district court had correctly refused to exercise ancillary jurisdiction over Cherry’s claims as Cherry sought relief from judgment from a tribunal different than the one that handed down the judgment, the Circuit Court said that there is no independent ground for jurisdiction in contrast to “an independent action brought in the same court as the original lawsuit” which does not “require an independent basis for jurisdiction.

* A Latin phrase meaning "for oneself" or "on one's own behalf".

** In addition, the Circuit Court said that were it to construe Cherry's claim under 42 U.S.C. §1983 [the Civil Rights statute], such an action would be untimely as the otherwise relevant three-year statute of limitations had elapsed.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a41b39fb-5c98-474a-9626-e28a30cda4d9/13/doc/16-3725_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a41b39fb-5c98-474a-9626-e28a30cda4d9/13/hilite/

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 7, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending October 7, 2017

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations:

Department of Health: Questionable Payments for Practitioner Services and Pharmacy Claims Pertaining to a Selected Physician (Follow-Up) (2017-F-2)
An initial audit issued in September 2015 found significant issues with medical records provided by a physician to support his Medicaid claims. There was insufficient assurance that the doctor provided appropriate medical care and that services totaling $1,039,404 warranted Medicaid payment. At the time of the follow up review, the Office of the Medicaid Inspector General (OMIG) was actively investigating the doctor. According to OMIG officials, steps will be taken to implement each of the four recommendations made in the initial audit pending the results of the investigation.

Department of Health (DOH): Medicaid Program: Administrative Costs Used in Premium Rate Setting of Mainstream Managed Care Organizations (MCOs) (2015-S-76)
Auditors found that one MCO reported about $9.8 million in administrative expenses that were not allowable. Several MCOs appear to have shifted costs from the non-allowable category of marketing to the allowable category of facilitated enrollment, contrary to the intent of a policy change that was initiated from the Governor's Medicaid Redesign Team proposal. As a result, DOH is not fully realizing the annual savings that should occur as a result of the policy change. For fiscal year 2014-15, auditors estimate DOH paid MCOs about $127 million for facilitated enrollment through the premium rates. However, despite the magnitude of these payments, DOH does not adjust each MCO's premium to reflect the MCO's actual facilitated enrollment activities.

Hudson River Park Trust: Selected Financial Management Practices (2016-F-22)
A prior audit found the trust needed to improve its practices related to revenue collection, procurement, investments, payroll, budgeting and equipment inventories. In a follow-up, auditors found that the trust made progress in correcting the problems identified in the initial report. However, additional actions are still needed.

Metropolitan Transportation Authority: New York City Transit - Train On-Time Performance (Follow-up) (2017-F-8)
A prior audit determined that for calendar years 2013 and 2014, actual on-time performance for subways was well below the goal of 91.9 percent. In a follow-up, auditors found that the MTA made limited progress in addressing the problems identified in the prior report. Of the two prior audit recommendations, neither were fully implemented. Moreover, since the conclusion of the last audit, on-time performance has continued to decline.

State Education Department (SED): Lois Bronz Children's Center Inc., Compliance with the Reimbursable Cost Manual (2016-S-86)
The center provides preschool special education services to children with disabilities who are between three and five years of age. For the two years ended June 30, 2014, auditors identified $177,786 in ineligible costs that the center reported to SED for reimbursement. Auditors also identified $132,713 in questionable costs that the center reported from a contract it could not prove was competitively bid.

Thruway Authority: Compliance With Payment Card Industry Standards (2017-S-11)
Auditors identified several matters that management should address to improve the authority's information security program for cardholder data and to help ensure it meets PCI requirements. The Thruway has not taken fundamental steps to secure its network and could also improve certain other technical safeguards over the cardholder data it processes.

State Comptroller DiNapoli also released the following Municipal Audits

Town of Canandaigua – Fund Balance, Water Operations and Information Technology (Ontario County)
The board has not developed a long-term financial or capital plan, including a plan for reserves, or require a cash flow analysis. The board has not provided sufficient fiscal oversight of the town's water operations. As a result, there are no procedures for the accounting records to be maintained for each water district or extension to ensure that costs are equitably and appropriately distributed. The board has also not adopted policies to sufficiently protect its IT assets.

Greece Public Library – Information Technology (Monroe County)
Library officials need to improve controls to ensure that Library IT assets are adequately safeguarded. The board has not adopted any IT policies, including those addressing acceptable use, password management, user accounts, access rights, data backups, hardware and software inventories, restricting personal use, remote access or the disposal of hardware and electronic media.

Industrial Development Agency Board Governance (2017-MS-1)
Of the six IDAs examined, auditors found 49 of 155 projects reviewed contained incorrect information, including inaccurate job creation and retention numbers, project status and transfer information. The agencies' 2014 annual reports indicated they would create or retain 13,818 jobs, but they actually created or retained 10,209 jobs, a shortfall of 26 percent. In addition, the Orange County IDA's board acted outside of its authority by agreeing to accept a grant and administering the grant funds in consideration for approving a payment in lieu of taxes agreement.

Town of Junius – Supervisor's Records and Reports (Seneca County)
The town supervisor relied on the secretary to perform most of the financial transactions without providing adequate oversight. Consequently, the town's records are incomplete and not up-to-date, and are therefore, unreliable. The supervisor also failed to provide the board with the necessary financial reports to adequately monitor operations, and did not file the required reports with the appropriate agencies.

Orange County Community College – Information Technology and Financial Activities (2017M-111)
The board did not adopt adequate IT policies that address appropriate computer use and security. The board also needs to improve its purchasing procedures to ensure college officials procure goods and services in accordance with applicable statutes. College officials did not ensure that claims were properly authorized, supported and for legitimate purposes.

Village of Ravena – Departmental Collections and Leave Accruals (Albany County)
The recreational director and other staff collected pool fees but did not issue receipts or maintain records to adequately account for collections. Staff also did not properly update the accounting records and did not accurately record departmental collections.

Westchester County Sewer Districts – Financial Condition (2017M-155)
County officials have adopted structurally balanced budgets using fund balance in a judicious manner. The budget process for the county's sewer districts found officials adequately monitor the budget throughout the year.

For access to state and local government spending, public authority financial data and information on 140,000 state contracts, visit Open Book New York. The easy-to-use website was created to promote transparency in government and provide taxpayers with better access to financial data.