School district resident alleges members of the board of education and school officials and staff of "incompetent, unethical, inappropriate and illegal behaviors."

School district resident alleges members of the board of education and school officials and staff of "incompetent, unethical, inappropriate and illegal behaviors." 

Decisions of the Commissioner of Education, Commissioner's decision 17,393

In view of the variety issues addressed by the Commissioner in her deciding this appeal by a district resident and taxpayer of the Beacon City School District, the decision is set out below in its entirety.

Appeal of MELISSA RUTKOSKE, on behalf of CONCERNED PARENTS OF BEACON CITY SCHOOL DISTRICT from action of the Board of Education of the City School District of the City of Beacon regarding board practices.

Decision No. 17,393

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent^[1], Michael K. Lambert, Esq., of counsel

Elia, Commissioner:

Petitioner Melissa Rutkoske, a district resident and taxpayer, appeals on behalf of Concerned Parents of Beacon City School District (“Concerned Parents”) from various actions taken by the Board of Education of the City School District of the City of Beacon (“respondent board”), its school attorney and superintendent (collectively, “respondents”).

The appeal must be dismissed.

Petitioner Rutkoske asserts that Concerned Parents is a group of parents who support and endorse the instant petition.  Petitioner Rutkoske is an individual taxpayer and community member who resides within respondent board’s district.  In her verification of the petition, petitioner Rutkoske asserts that she is “the Petitioner on behalf of the Concerned Parents of the Beacon City School District.” 

According to petitioner, between the fall of 2014 and a board of education meeting which allegedly occurred on October 14, 2015, respondent board and its officials and staff committed various actions which petitioner characterizes as “incompetent, unethical, inappropriate and illegal behaviors [which] are ongoing and continuous.”  Petitioner cites numerous examples of such conduct; for example, petitioner states that respondent board and respondent’s attorney allowed a board meeting to continue even though the meeting room was over “fire code capacity”; that unethical personal relationships existed between respondent board’s staff, officials and individuals within the district; that personal affairs as well as business were conducted using the district’s email system; that improper gifts were made from a district official to an official of the Beacon Teacher’s Association (“BTA”); that respondent board’s administrative power was used improperly to assist in teacher promotion, teacher transfer, and student placement; and that the school attorney failed to properly investigate or review such alleged improper behaviors. 

Petitioner seeks “[i]nvestigation, audit, and oversight” by the New York State Education Department into the above allegations.  Petitioner further seeks an order “[d]irecting the [b]oard to remove the [superintendent] for cause” and to hire a new law firm to represent the district.

Respondents claim, inter alia, that petitioner’s allegations are without merit and stem from a personal vendetta harbored by petitioner Rutkoske.  Respondents assert that Concerned Parents “is, at best, an unincorporated association” which lacks standing to maintain the instant appeal.  Respondents claim that petitioner inappropriately gained access to district emails attached as exhibits to the petition.  Respondents also argue that petitioner failed to properly identify a respondent or respondents in the caption of the appeal, thus mandating dismissal for failure to join necessary parties.  Respondents further contend that the petition must be dismissed for lack of proper service and as untimely. 

Respondents additionally claim that the officer of the BTA of whom petitioner complains has resigned and, thus, any matters regarding this individual are moot. 

Respondents also assert that petitioner has failed to establish a clear legal right to the relief sought.  Respondents also object to the fact that the petition does not contain petitioner’s name, telephone number, or post office address as required by 8 NYCRR §275.4(a).

As an initial matter, by letter dated January 25, 2016, respondents object to petitioner’s reply, claiming that it contains new material and was not served on their attorney as required by §275.8(b) of the Commissioner’s regulations.  Petitioner’s affidavit of service indicates that the reply was served upon “the Clerk of the Board.”  As respondents note, the Commissioner’s regulations require that “all subsequent pleadings and papers shall be served upon the adverse party or, if the adverse party is represented by counsel, upon such party’s attorney” (8 NYCRR §275.8[b]).  Accordingly, I have not considered petitioner’s reply (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335).

Concerned Parents lacks standing to bring this appeal.  As respondents note, there is no evidence in the record suggesting that Concerned Parents is an incorporated association.  Petitioner has merely attached to her petition a list of signatures allegedly belonging to district residents who “support” the instant petition.  An unincorporated association lacks standing to maintain an appeal under Education Law §310 (Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,282; Appeal of Torres, 46 id. 301, Decision No. 15,515).  Moreover, an individual representative of an unincorporated association has no greater standing to maintain an appeal pursuant to Education Law §310 than the association itself (Appeal of Beilman, 38 Ed Dept Rep 644, Decision No. 14,109; Appeal of Ben-Reuben, et al., 33 id. 299, Decision No. 13,055).  Therefore, neither Concerned Parents nor petitioner Rutkoske, as an individual representative of such unincorporated association, may maintain the instant appeal.

However, although not entirely clear from the petition, to the extent petitioner Rutkoske intends to bring this proceeding on her own behalf as a district resident and taxpayer, she has standing to do so to the extent she is aggrieved.^[2]  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  To the extent petitioner Rutkoske attempts to assert claims on behalf of other parents, however, she lacks standing to do so.  (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874). 

The appeal must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  As described herein, petitioner raises claims and seeks relief that, if granted, would adversely affect, at a minimum, the board, the superintendent and the school attorney.  However, she has failed to name any of them in the caption of the appeal. Indeed, the caption in this matter as submitted by petitioner Rutkoske reads as follows:

In the Matter of Concerned Parents of Beacon City School District

requesting New York State Education oversight due to

unethical, illegal and inappropriate conduct of the leadership of

the Beacon City School District.

Moreover, petitioner has not personally served the board, superintendent or school attorney.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).  The record indicates that the instant appeal was served only upon the district treasurer.  Although petitioner’s affidavit of service indicates that the district treasurer is authorized to accept service on behalf of the district, the treasurer has submitted an affidavit herein whereby she attests that she is not authorized to accept service on behalf of the district. 

On this record, therefore, in light of the conflicting affidavits, I find that the evidence regarding service of the petition on respondent is in equipoise and petitioner has not met her burden of proving that proper service was made on respondent board (see Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623).

Moreover, the record contains no evidence of personal service upon the superintendent and school attorney.  Therefore, because each individual and entity would clearly be affected by a determination in petitioner’s favor, the appeal must be dismissed for failure to join necessary parties.

To the extent petitioner seeks an order directing respondent board to remove the superintendent, such request must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  I take administrative notice of information published on the district’s website indicating that Barbara Walkley is no longer the district’s superintendent.  Therefore, subsequent events have rendered petitioner’s request academic (see Appeal of Budich and MacDonald, 54 Ed Dept Rep, Decision No. 16,774).

Furthermore, petitioner’s request for the removal of the school district’s attorney and the hiring of a new law firm to replace him amounts to a request that I remove the school attorney pursuant to Education Law §306.  It is well established, however, that a school attorney is not an officer of the district and, therefore, not subject to removal from office by the Commissioner of Education (Application of Balen, 40 Ed Dept Rep 250, Decision No. 14,474; Application of Rojek and Spadone, 24 id. 434, Decision No. 11,453; Application of Sterling, 23 id. 294, Decision No. 11,223).  Accordingly, the appeal must be dismissed against the school attorney.

Finally, to the extent petitioner seeks an investigation, an audit, and/or the oversight by the New York State Education Department “into the behaviors of” the board and various individuals, including the superintendent and school attorney, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

^[1]As described more fully below, the original caption submitted by petitioner in this matter identified only the “leadership of the Beacon City School District.”  As a result, respondent’s counsel asserts that, in “an exercise of caution,” the verified answer is submitted on behalf of the “leadership of the Beacon City School District.”

^[2]In light of this determination, references below to “petitioner” refer to petitioner Rutkoske, the sole petitioner with standing to maintain the instant appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17393

Rejection of a hearing officer's finding of fact and determination by the appointing authority

Rejection of a hearing officer's finding of fact and determination by the appointing authority

Kelly v New York State Justice Ctr. for The Protection of People With Special Needs, 2018 NY Slip Op 03407, Appellate Division, Third Department

The Petitioner in this action was employed by the Office for People with Developmental Disabilities at the Brooklyn Developmental Disabilities Service Office as a treatment aid.

The New York State Justice Center for The Protection of People With Special Needs [Justice Center] received a report alleging that Petitioner "committed acts of neglect when [she] breached [her] duty towards multiple service recipients by failing to use appropriate and professional language in their presence."

Ultimately Justice Center informed Petitioner that after reviewing the evidence presented, it determined that a preponderance of the evidence supported a finding of abuse or neglect pursuant to Social Services Law §494 and the matter involving Petitioner's alleged "acts of neglect" was referred to Respondent's Administrative Hearings Bureau.

Following the hearing, an Administrative Law Judge [ALJ] concluded that the evidence did not establish that Petitioner had committed an act of neglect. Justice Center, however, rejected the ALJ's recommendation, finding that, "by a preponderance of the evidence," Petitioner had committed neglect. Petitioner then commenced an CPLR Article 78 proceeding challenging Justice Center's determination, which was transferred to the Appellate Division.

Petitioner argued that the Justice Center was required to adopt the ALJ's recommended decision.* The Appellate Division held that Petitioner's argument was "without merit."  It also disagreed with Petitioner's contention that Justice Center's regulation 14 NYCRR 700.13 conflicts with Social Services Law §494(1)(b), noting that the statute does not require that the ALJ's decision be final and binding upon Justice Center. Instead, the statute merely states that, in the event that a petition is not sustained by the ALJ, such finding must be reflected upon an amended record.

Addressing the authority of Justice Center's "Chief of Staff" to render a final determination, the Appellate Division ruled that "the death of Justice Center's Executive Director did not diminish the Chief of Staff's authority to act as a designee of the Executive Director and, as such designee, render a final determination."

Public Officers Law §9, in pertinent part, provides ... Deputies, their appointment, number and duties. Every deputy ... in case of [the officer's] absence from the office or  his [or her] inability to act, or in case of a vacancy in the office, and if he [or she] shall fail to make such designation, the deputy ... shall so act. If a vacancy in a public office shall be caused by the death of the incumbent, the deputies shall, unless otherwise provided by law, continue to hold office until the vacancy shall have been filled in  accordance with law.

* With respect to court upholds appointing authority's rejection of hearing officer findings, In the Matter of Linda Ziehm, 90 A.D.2d 677, Affd, 59 N.Y.2d 757, the Appellate Division held that where the record contained substantial evidence affording a rational basis for the appointing authority determination, the appointing authority's determination will be sustained. See, also, Delgrande v Greenville Fire Dist., 126 AD3d 968 and Perfetto v Erie Co. Water Auth., 298 A.D.2d 932.  [The appointing authority may reject the findings and recommendations of a hearing officer if its decision is supported by substantial evidence.] Further, in Weill v New York City Dept. of Educ., 61 AD3d 407, the decision notes that the administrative body, rather than its attorney, must indicate the basis for its administrative action or decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03407.htm

Proper service of the petition and notice of the petition of an appeal to the Commissioner of Education critical to the Commissioner assuming jurisdiction

Proper service of the petition and notice of the petition of an appeal to the Commissioner of Education critical to the Commissioner assuming jurisdiction

Appeal of J.M from action of the Board of Education of the Croton-Harmon Union Free School District, Decisions of the Commissioner of Education, Decision No. 17,402

In some instances an appeal to the Commissioner of Education is dismissed for failure to comply with certain procedural requirements. The appeal of J.M. illustrates one of the reasons why an appeal is rejected on technical grounds, in this instance for lack of proper service of the appeal on the respondent parties.

Croton-Harmon Union Free School District, in its reply to J.M.'s appeal, contended that the appeal must be dismissed for lack of proper service. The Commissioner agreed, explaining that the Commissioner’s regulation requires that the petition be personally served upon each named respondent as set out in 8 NYCRR §275.8(a).*

In the event a school district is named as a respondent, 8 NYCRR §275.8(a) requires that service upon the school district "shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service."

J.M.'s affidavit of service indicated that the appeal was served upon the secretary to the superintendent.  Although the affidavit of service attests that the secretary was “duly authorized to accept service,” Croton-Harmon said that the secretary has not been designated by it to accept service on behalf of the school district or the superintendent. 

The Commissioner, noting that J.M. did not submitted a reply or otherwise responded to the Croton-Harmon’s "motion to dismiss" J.M.'s appeal, said that in the event there is no proof that an individual is authorized to accept service on behalf of respondent, "service is improper and the appeal must be dismissed."

The Commissioner observed that considering the record before her, "I cannot conclude that [J.M.] properly served a copy of the notice of petition and petition on [Croton-Harmon]" and, accordingly, J.M.'s appeal must be dismissed.

Another common procedural defect resulting in the dismissal of the appeal is the petitioner's failure to serve a "necessary party" as required by 8 NYCRR 277.1(b).**

A "necessary party" is a  party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner and must be joined as such. Further, joinder as a necessary party requires that an individual be clearly named as a necessary party by name in the caption of the petition and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Further, it is the petitioner's burden to properly serve the petition and the service of the petition and the petitioner must submit evidence that that has been done. In the absence of such evidence, the Commissioner has ruled that the appeal must be dismissed "for improper service."

* 8 NYCRR 275.8, service of pleadings and supporting papers, provides as follows:

(a) Petition. A copy of the petition, together with all of petitioner's affidavits, exhibits, and other supporting papers, except a memorandum of law (unless the appeal is a charter school location/co-location appeal pursuant to section 276.11 of this Title, in which case the memorandum of law shall be served with the petition) or an affidavit in support of a reply, shall be personally served upon each named respondent, or, if a named respondent cannot be found upon diligent search, by delivering and leaving the same at the respondent's residence with some person of suitable age and discretion, between six o'clock in the morning and nine o'clock in the evening, or as otherwise directed by the commissioner. If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service. If a board of cooperative educational services is named as a party respondent, service upon such board shall be made personally by delivering a copy of the petition to the district superintendent, to a person in the office of the district superintendent who has been designated by the board to accept service, or to any member of the board of cooperative educational services. Pleadings may be served by any person not a party to the appeal over the age of 18 years. If the last day for service of the petition falls on a Saturday or Sunday, service may be made on the following Monday; and if the last day for such service falls on a legal holiday, service may be made on the following business day.

** In Decisions of the Commissioner of Education, Decision #16,853 the Commissioner noted that although a necessary party had not been named in "the original petition," her Office of Counsel had advised the all the parties that the petitioner's earlier request to join an individual as a necessary party was granted. Consequently, said the Commissioner, “in this instance, I find the failure to include that [individual] in the original petition is not a basis for dismissal of this appeal."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17402

New York State's Comptroller and New York State's Attorney General announce guilty plea of Queens pharmacy owner for $1.5 million Medicaid fraud scheme

New York State's Comptroller and New York State's Attorney General announce guilty plea of Queens pharmacy owner for $1.5 million Medicaid fraud scheme

Source: Office of the State Comptroller

On June 8, 2018 State Comptroller Thomas P. DiNapoli and Attorney General Barbara  Underwood announced that Arkady Goldin of Brooklyn and Value Pharmacy, Inc., ["Value"] a pharmacy formerly located in Corona, Queens before re-locating to its current location in Lynbrook, NY, entered felony guilty pleas in Supreme Court, Queens County admitting to defrauding the State’s Medicaid program out of $1.5 million. The case was investigated and prosecuted as part of the Attorney General and State Comptroller’s Joint Task Force on Public Integrity.

The State Comptroller said that "Arkady Goldin billed Medicaid millions for cancer medications he never dispensed. Thanks to our partnership with the Attorney General’s Office, Goldin has been convicted, his corrupt pharmacy closed, and he and his partners will pay the state back for the $3 million total in stolen Medicaid funds" while the Attorney General added that “We have zero tolerance for those who defraud the state’s Medicaid program. We will continue to aggressively pursue all individuals who steal from Medicaid to enrich themselves at the expense of those who need the program for their fundamental health care.”

Supreme Court Justice Barry Kron accepted Goldin’s guilty plea to Health Care Fraud in the Second Degree, a class C felony, and to violating the Social Services Law prohibition on the payment of kickbacks related to the State’s Medicaid program, a class E felony.

The pharmacy entered a guilty plea to Grand Larceny in the First Degree, a class B felony. Goldin will be sentenced to six months incarceration, five years’ probation, and, along with Value, will be required to pay $1.5 million as restitution for money stolen from Medicaid. The defendants will also pay an additional $1.5 million in financial penalties, including a $10,000 fine that must be paid by the corporation. Goldin will also be required to perform 200 hours of community service.

Goldin's and Value's pleas will also resolve a separate civil asset forfeiture and False Claims Act law suit filed by the Attorney General’s Medicaid Fraud Control Unit Civil Enforcement Division in New York State Supreme Court, Queens County.

In papers filed in court, the State alleged that Goldin, an owner of Value, which formerly was located in Corona, Queens, had a kickback arrangement with a former employee of Nassau University Medical Center (NUMC) who earlier in the investigation pleaded guilty to unlawfully accepting kickbacks related to Medicaid services. In exchange for steering expensive cancer prescriptions from NUMC to Value, Goldin paid the hospital employee a monthly cash referral fee and provided him with other items of value, including tickets to sporting events, an iPad, and free meals. State law prohibits all medical providers, including pharmacies, from paying or offering to pay kickbacks to another person in return for the referral of medical services ultimately paid for by Medicaid.  

Additionally, as part of the scheme, the investigation uncovered that Value did not purchase sufficient amounts of medication from licensed New York State drug wholesalers that would have been necessary if Value legitimately dispensed prescriptions for which Value billed Medicaid. As a result of the unlawful scheme, Medicaid ultimately paid Value over $1.5 million for unlawful claims for medications.

Since 2011, the Attorney General and Comptroller have worked together to fight corruption through their Joint Task Force on Public Integrity. They have brought charges against dozens of individuals implicated in public corruption schemes around the state – resulting in the return of millions in restitution to taxpayers through these convictions.

Comptroller DiNapoli’s investigation was led by the OSC Division of Investigations, working with the OSC Division of State Government Accountability.

The AG’s MFCU investigation was conducted by Investigator Daniel McCarron with the support of Supervising Investigators Dominick DiGennaro and Ronald Lynch, under the supervision of MFCU Deputy Chief Investigator Kenneth Morgan. Financial analysis was developed by Auditor-Investigator Edgar Romero and Senior Auditor-Investigator Olga Sunitsky, under the supervision of MFCU NYC Regional Chief Auditor Thomasina Smith. Investigative support was provided by Supervising Legal Assistant Wendy Dorival, as well as Confidential Legal Analysts Victoria Sepe, Daniel Herzog, and Patrice Noel. Additional components of the investigation were supported by Assistant Attorney General Lisa Wallace and Bureau Chief Brent Meltzer of the Attorney General’s Real Estate Finance Bureau.

The criminal case was prosecuted by Special Assistant Attorneys General Michael Leigh and Megan Friedland under the supervision of MFCU NYC Deputy Regional Director Twan Bounds, Regional Director Christopher M. Shaw, and MFCU’s Chief of Criminal Investigations–Downstate Thomas O’Hanlon. The civil case was litigated by Special Assistant Attorneys General Elizabeth Kappakas and Diana Elkind, with the assistance of MFCU Civil Enforcement Division Chief Carolyn Ellis. MFCU is led by Director Amy Held and Assistant Deputy Attorney General Paul J. Mahoney.  

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236.

A party filing a motion seeking a permanent stay of a demand for arbitration must satisfy a "two-part test" to prevail

A party filing a motion seeking a permanent stay of a demand for arbitration must satisfy a "two-part test" to prevail

Village of Garden City v Professional Firefighters Assn. of Nassau County, Local 1588, 2018 NY Slip Op 03688, Appellate Division, Second Department

This proceeding involved a dispute between Village of Garden City [Village],  and the Professional Firefighters Association of Nassau County, Local 1588 [PFA] concerning  Village's implementation of a staffing protocol that was formulated to ensure compliance with a prior arbitration award that was earlier confirmed by this court.* The arbitrator in the earlier arbitration had found that the Village violated the parties' collective bargaining agreement [CBA] by assigning the operation of first-line equipment to volunteer firefighters rather than to paid firefighters represented by PFA.  

PFA filed a grievance contending that the new protocol continued to improperly assign the operation of first-line equipment to volunteer firefighters and demanded arbitration. The Village objected to submitting this new grievance to arbitration and filed an Article 75 petition seeking a permanent stay of the arbitration. Supreme Court issued denied the Village's petition and granting PFA's motion to compel arbitration of the grievance. The Village appealed the Supreme Court's ruling.

The Appellate Division ruled that Supreme Court properly denied the Village's petition to permanently stay arbitration of the grievance and granted PFA's motion to compel the arbitration of the grievance noting that in the earlier proceeding it had ruled that  grievances challenging the operation of first-line equipment by volunteers were arbitrable.

Referring to the two-part test used by the courts to determine whether a dispute between a public sector employer and employee is arbitrable** the court explained that:

1. "Initially, the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance;

2. "If there is no prohibition against arbitrating, the court must examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute;

3. "In examining the collective bargaining agreement, the court must merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [agreement];

4. "If there is, 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."

As the Village was unable to demonstrate that arbitration of PFA's instant grievance was prohibited by statutory or public policy or that PFA's instant grievance was not reasonably related to the general subject matter of the CBA, the court again ruled that the question of the scope of the substantive provisions of the CBA was a matter of contract interpretation and application reserved for the arbitrator.

* See Matter of Professional Firefighters Assn. of Nassau County, Local 1588, Intl. Assn. of Firefighters, AFL-CIO v Village of Garden City, 119 AD3d 803.

** See Locust Val. Cent. Sch. Dist. v Benstock, 144 AD3d 758.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03688.htm