Separation of Powers

Separation of Powers

Garcia v New York City Dept. of Health & Mental Hygiene, 2018 NY Slip Op 04778, Court of Appeals

Among the issues addressed by the Court of Appeals in this action was an alleged violation of the doctrine of Separation of Powers.

In response to the Appellate Division's holding that the adoption of certain administrative rules violated the separation of powers doctrine, New York City argued that the legislature has properly delegated to New York City's Board of Health, through Administrative Code §17-109, the necessary authority to promulgate the rules at issue.* The City contended that the Appellate Division inappropriately applied the so-called Boreali factors** "to second-guess the manner in which the Board exercised its regulatory authority, instead of merely determining whether the Board possessed the requisite authority to promulgate the rules in the first instance."

The Court of Appeals agreed. Citing Matter of NYC C.L.A.S.H., Inc. v New York State Off. of Parks, Recreation & Historic Preserv., 27 NY3d 174, the court explained that "The concept of the separation of powers is the bedrock of the system of government adopted by this State in establishing three coordinate and coequal branches of government, each charged with performing particular functions." This principle, "implied by the separate grants of power to each of the coordinate branches of government, requires that the Legislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies."

Separation of powers challenges, noted the court, "often involve the question of whether a regulatory body has exceeded the scope of its delegated powers and encroached upon the legislative domain of policymaking."

In this regard an administrative agency can adopt regulations that go beyond the text of the relevant legislation, "provided they are not inconsistent with the statutory language or its underlying purposes." On the other hand, as it ruled in Greater N.Y. Taxi Assn., 25 NY3d at 609, the Court of Appeal said that "The guiding legislation 'need not be detailed or precise as to the agency's role' and, as an overarching principle, 'common sense must be applied when reviewing a separation of powers challenge.'"

The "difficult-to-define line between administrative rule-making and legislative policy-making" was clarified [by Boreali] by articulating four "coalescing circumstances" relevant to rendering such a determination as follows:

1. Did the regulatory agency balanced costs and benefits according to preexisting guidelines rather than make value judgments requiring difficult and complex choices between broad policy goals to resolve social problems;

2. Did the regulatory agency "merely filled in details of a broad policy" or did it create its own comprehensive set of rules without benefit of legislative guidance;

3. Had the legislature been unsuccessful in its efforts to enact laws pertaining to the issue; and

4. Did the regulatory agency use "special technical expertise in the applicable field."

Ultimately any Boreali analysis, said the court, "should center on the theme that it is the province of the people's elected representatives, rather than appointed administrators, to resolve difficult social problems by making choices among competing ends" as "A rule has the force of law, but it is not a law; rather, it implements or applies law or policy" and the administrative body must act within the limitations of its legislatively-delegated powers.

Rejecting the Petitioners' separation of powers challenge, the Court of Appeals emphasized that a Boreali analysis is not aimed at determining whether a regulatory agency adopted the most desirable method or type of regulation and the factors enumerated in Boreali "are not designed to second-guess agency regulations that properly falls within the agency's purview." In the event the Boreali factors indicate that the agency has been empowered to regulate the matter in question, the court said that the separation of powers analysis "goes no farther in reviewing the agency's methods."***

* The challenged rules: The City's Board of Health's amendments to the New York City Health Code mandating that children between the ages of 6 months and 59 months who attend city-regulated child care or school-based programs receive annual influenza vaccinations.

** Boreali v Axelrod, 71 NY2d 1.

*** The Court of Appeals also rejected Petitioner's alternative theory, that the City's flu vaccine rules were invalid because they conflicted with the State's Public Health Law and thus violated the Premption Doctrine which expresses "a fundamental limitation on home rule powers" and "embodies the untrammeled primacy of the [l]egislature to act with respect to matters of State concern."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04778.htm

Claim that the arbitrator exceeded a limitation in the collective bargaining agreement held to be, in fact, a challenge to the arbitrator's interpretation of the agreement

Claim that the arbitrator exceeded a limitation in the collective bargaining agreement held to be, in fact, a challenge to the arbitrator's interpretation of the agreement

Matter of Lift Line, Inc. (Amalgamated Tr. Union, Local 282), 2018 NY Slip Op 05102, Appellate Division, Fourth Department

The terms of the collective bargaining agreement (CBA) between Lift Line, Inc., [Employer] and the Amalgamated Transit Union, Local 282 [Local 282] provided that, if the discharge of an employee was found to be without "just cause," the record of the offense would be cleared from the employee's personnel file.

The CBA also incorporated a memorandum of agreement with respect to employee attendance (Attendance Policy) that set forth an eight-step disciplinary process, including discharge of the employee at step eight. The Attendance Policy provided that an employee "who is tardy will progress one step in the attendance disciplinary process for each instance of tardiness," and would move back one step if he or she did not have "another incident of tardiness for six consecutive months after such discipline."

The employee [grievant] here was late to work on seven occasions over the course of a little over one year and was thus at step seven at the time of the incident that led to her termination. In that incident, she was one minute late to work after her vehicle was stuck behind a disabled train at a rail crossing near her employer's facility.

The arbitrator analyzed the just cause provision together with the Attendance Policy and concluded that Employer's strict application of the attendance disciplinary process to terminate the grievant was "overly severe, especially with the absence of any evidence that efficiency or other difficulties were created by the [g]rievant's one-minute tardiness."

Supreme Court granted Employer's petition to vacate the arbitration award, in part, denied the application of Union to confirm the arbitration award, and reimposed the penalty of employment termination as provided by the CBA. The Appellate Division unanimously reversed the Supreme Court's ruling "on the law," granted the Union's application and confirmed the arbitration award.

As relevant here, said the Appellate Division, "[A]n arbitrator's rulings, unlike a trial court's, are largely unreviewable [and] [a]n arbitrator's interpretation may even disregard the apparent, or even the plain, meaning of the words of the contract before him [or her] and still be impervious to challenge in the courts." Explaining that an arbitration award is irrational "if there is no proof whatever to justify," the court said it agreed with the Union  that the arbitrator's award in this instance was not irrational* as here "there is a colorable justification for the arbitrator's determination."

The Attendance Policy was a no-fault, straightforward progression of discipline that would be imposed for every incident of tardiness. Nevertheless, the CBA also had the "just cause" provision, and the arbitrator concluded that strict adherence to the attendance policy could be rejected in exceptional cases.

In concluding that the grievant's termination was overly severe, the court said that the arbitrator relied on the fact that the grievant called in 10 minutes before her shift to say that she might be late due to the delay caused by the disabled train; another employee called in to report the same delay; the delay was unexpected and abnormal; the grievant was only one minute late; and no difficulties were created by the grievant's tardiness.

Thus, said the Appellate Division, "[t]he arbitrator made a rational interpretation of the just cause provision and the Attendance Policy. "Although the court recognized that "a different construction could have been accorded to the subject provision[s] of the [CBA]," it decided that "it cannot be stated that the arbitrator gave a completely irrational construction to the provision in dispute and, in effect, exceeded [his] authority by making a new contract for the parties."

Observing that the CBA provided that the arbitrator "shall have no power or authority to add to, subtract from, modify, change, or alter any provisions of this Agreement,"** the Appellate Division found that the arbitrator had not impose any new requirement upon Employer before it could discipline its employees and thus did not add to or alter the CBA. Rather, as the court had indicated earlier in its opinion, "the arbitrator determined, under the specific facts of this case, that the penalty of termination could not be upheld" and did not adopt any new rules that Employer must follow in future disciplinary cases. [Emphasis supplied by the court.]

Indeed, the court commented that "[t]he argument that the arbitrator exceeded a limitation in the collective bargaining agreement . . . is nothing more than a challenge to the substance of the arbitrator's contract interpretation, which . . . is foreclosed." 

* The Appellate Division, however, noted that "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached."

**A court may vacate an arbitration award if it finds that the rights of a party were prejudiced when "an arbitrator . . . exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made" (CPLR 7511 [b] [1] [iii])." Such an excess of power occurs only where the arbitrator's award violates strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05102.htm

Conducting student disciplinary proceedings consistent with fundamental notions of due process is an "unwavering obligation"

Conducting student disciplinary proceedings consistent with fundamental notions of due process is an "unwavering obligation"

2018 NY Slip Op 05104, Appellate Division, Fourth Department

A college [Respondent] had sanctioned a student for alleged violations of the Student Code of Conduct. In response to the student's challenge to the Respondent's action the Appellate Division "unanimously annulled" the determination "on the law" and directed the Respondent "to expunge all references to this matter from [the student's] school record."

The Respondent had determined that the student had "possessed weapons and engaged in harassment" and imposed 50 hours of community service, two years of disciplinary probation, and exclusion from on-campus housing as the penalty for the alleged misconduct.

The Appellate Division said it agreed with the student that "the record is devoid of any evidence, much less substantial evidence," to support the Respondent's determination, pointing out that Respondent's determination rests exclusively on a "seriously controverted" hearsay statement, and that does not, as a matter of law, constitute substantial evidence."

The court also declined the Respondent's "invitation to remit the matter for a new hearing in light of its failure to transcribe the disciplinary hearing," explaining "Annulment and expungement is the prescribed remedy for an administrative determination that is unsupported by substantial evidence."

It would be anomalous, said the Appellate Division, were the Respondent afforded "a new opportunity to establish [the student's] culpability based on its own procedural error in failing to transcribe the initial hearing."

The court also said it felt "compelled to express [its] dismay at [Respondent's] cavalier attitude toward [the student's] due process rights in this case, and we remind [Respondent] -- and all other colleges and universities, particularly state-affiliated institution -- of their unwavering obligation to conduct student disciplinary proceedings in a manner that comports with fundamental notions of due process for the accused, that renders determinations consistent with the facts, and that respects the presumption of innocence to which all students are entitled."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05104.htm

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Individual whose position has been abolished must prove that the appointing authority abolished the position in bad faith or in an effort to circumvent the Civil Service Law

Matter of Terry v County of Schoharie, 2018 NY Slip Op 04612, Appellate Division, Third Department

Petitioner in this CPLR Article 78 action alleged that Schoharie County [Schoharie] had abolished her position in violated Civil Service Law §80 as it was done in bad faith and, with respect her federal claims, violated her constitutional rights to due process, equal protection and political affiliation.

Schoharie removed the proceeding to Federal District Court and that court ultimately dismissed all of Plaintiff's federal claims on the merits. The District Court, however, declined to exercise supplemental jurisdiction over Plaintiff's remaining state law claims and remanded them back to Supreme Court. Supreme Court then granted Schoharie's motion for summary judgment dismissed Plaintiff's petition and Plaintiff appealed.

The Appellate Division, indicating that "A public employer may, in the absence of bad faith, collusion or fraud, abolish positions for the purposes of economy or efficiency",  noted that Schoharie had argued that Petitioner's position was abolished as part of a cost-saving measure due to fiscal restraints resulting from flooding caused by Hurricane Irene and was experiencing a loss of population as well as a shrinking tax base and had eliminated positions and restructured several County departments by consolidation or separation of functions. To rebut such proof the Appellate Division said that Petitioner was required to prove "that the abolition of [her] position was brought on by bad faith or in an effort to circumvent the Civil Service Law."

Addressing the issue of Schoharie's alleged bad faith, the Appellate Division said "hat issue was squarely addressed and decided by the District Court in its resolution of Petitioner's federal claims." In dismissing the federal claims, grounded upon the same allegations as those underlying the claimed Civil Service Law violations, the District Court "expressly held that the evidence submitted by [Schoharie] established that Petitioner's position was abolished as a cost-saving measure and that there was no evidence to support Petitioner's "self-serving testimony that [Schoharie] acted in bad faith" or in retaliation for Petitioner's change of political party enrollment.

Noting that the doctrine of collateral estoppel "precludes a party from relitigating an issue which has previously been decided against [him or] her in a proceeding in which [he or] she had a fair opportunity to fully litigate the point," regardless of whether the tribunals or causes of action are the same, the Appellate Division observed that the factual issue of bad faith "was raised, necessarily decided and material in the [District Court], and [Petitioner] had a full and fair opportunity to litigate the issue." Thus, said the court, Petitioner is barred by the principles of collateral estoppel from relitigating that issue in the course of her Article 78 action.

In the absence of bad faith, Schoharie's showing of an economic justification for the elimination of Petitioner's position could only be countered by proof that "no savings were accomplished or that someone was hired to replace [Petitioner]." Petitioner, however, did not dispute that the reorganization of her department and the concomitant elimination of her position, resulted in fiscal savings to the County or that Schoharie did not replace her.

Although Petitioner contended that many of her duties that Petitioner had been assumed by another Senior Planner and that Schoharie violated the prohibition in Civil Service Law §61(2) against assigning civil servants to out-of-title work by assigning supervisory responsibilities to that Senior Planner, the Appellate Division found that such work "either falls within the official duties set forth in the Senior Planner job classification or is a reasonable and logical outgrowth of those duties."

Accordingly, the Appellate Division concluded that Petitioner failed to raise an issue of fact in response to Schoharie's showing that its actions "were part of a good faith effort to reorganize a municipal department for the purposes of reducing costs and increasing efficiency," her petition was properly dismissed by Supreme Court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04612.htm

Employee exercising a right to obtain his or her own attorney to prosecute a grievance divests the employee organization's attorney of standing in the matter with respect to the grievant

Employee exercising a right to obtain his or her own attorney to prosecute a grievance divests the employee organization's attorney of standing in the matter with respect to the grievant

Matter of City of Syracuse (Lee), 2018 NY Slip Op 05077, Appellate Division, Fourth Department

This decision explores a number of unusual circumstances and events impacting on efforts to confirm an arbitration award, including:

1. a policy negotiated by the employer and the employee organization permitting an aggrieved member, in lieu of the employee organization, to submit certain issues to arbitration;

2. a Supreme Court's authority to, sua sponte, vacate its prior order and judgment confirming an arbitration award  and directing further arbitration; and

3. the lack of Supreme Court having "personal jurisdiction" of the grievant with respect to the employer's efforts to confirm an arbitration award in its favor.

A dispute between the City and the Syracuse Police Benevolent Association [SPBA]  concerning the General Municipal Law §207-c benefits received by Katherine Lee [Lee], a former City police officer who was injured in the line of duty. Although Lee was directed to return to work she refused and her §207-c benefits were discontinued. Lee  challenged the directive given to her pursuant to the "General Municipal Law §207-c Policy" [Policy] negotiated by the City and SPBA.

The Policy negotiated by the City and SPBA provided that an officer "shall not be required to return to work and shall continue to receive his or her prior benefits during the review process but, '[i]n the event that the Chief's determination is sustained, the Officer must reimburse the City for the value of benefits received during the pendancy [sic] of the review process.'" Lee demanded the City's action discontinuing her §207-c benefits be submitted to arbitration.*

Arbitrator Michael S. Lewandowski ruled that SPBA "failed to prove that the City acted arbitrarily [or] capriciously or that the City's determination was affected by an error of law when it determined to discontinue [Lee's] 207-c benefits." Subsequently a second arbitration was held concerning the interpretation of the   "value of benefits" subject to reimbursement to the City under the Policy, and Arbitrator Thomas N. Rinaldo ruled in the City's favor, holding that "wages are included in the 'value of benefits' for purposes of reimbursement under the Policy." In response to the City's request that Arbitrator Lewandowski to direct Lee to reimburse the City in the amount of $71,436.44, Lewandowski responded that the City was "free to seek reimbursement of wages . . . by whatever means it finds available to it." Lewandowski also declined the City's request to make a supplemental award providing for such reimbursement.

Although Supreme Court denied the City's motion to resettle the prior order and judgment, if concluded that it had inherent authority to vacate the order and judgment in the interest of justice, and it held the order and judgment in abeyance pending a decision by Lewandowski on the amount that the City is entitled to recoup from Lee.

The Appellate Division found that Supreme Court erred in denying Lee's cross motion to dismiss the City's petition as Lee had established that Supreme Court failed to acquire personal jurisdiction over her in the proceeding to confirm the arbitration award by Lewandowski because the City never properly served her.

Nor,  said the Appellate Division, did Supreme Court acquire personal jurisdiction over Lee by the unauthorized appearance of the Union's attorney "on behalf of Katherine Lee" in the course of the proceedings, explaining that "there is no evidence that Lee expressly or implicitly authorized the Union's attorney to represent her at any stage of the proceedings."

In concluding that the appearance of the Union's attorney did not confer jurisdiction over Lee, the Appellate Division acknowledges the general rule that "an employee has no individual right to enforce a contract between the employee's employer and union." 

However, noted the court, there are exceptions to that rule, and one of those exceptions applies in the circumstances herein inasmuch as "the contract provides otherwise." Specifically, the Policy explicitly provides Union members with the rights "to compel a review of the Chief's determination" and to have counsel or another representative "at any stage of the procedure."

In the words of the Appellate Division, "Lee availed herself of those rights from the outset of the arbitration and, to the extent that the Union's attorney acted on Lee's behalf during that part of the proceeding that was before arbitrator Rinaldo, that attorney was not the 'representative of . . . [Lee's] choosing' contemplated by the Policy. In any event, while the Union represented all of its members with respect to the proper interpretation of the 'value of benefits" to be reimbursed under the Policy, it was Lee alone who would be affected by, and thus entitled to litigate, the amount to be reimbursed to the City."

As to Supreme Court's "sua sponte vacating its prior order and judgment, which confirmed the arbitration award by Lewandowski, and directing further arbitration," the Appellate Division vacated "the second ordering paragraph of the order on appeal."

Although Supreme Court had authority to "vacate its own judgment for sufficient reason and in the interests of substantial justice," the Appellate Division observed that such authority "is not unlimited" and a court's "inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect." Further, noted the Appellate Division, in vacating the order and judgment the Supreme Court "exceeded the narrow bounds within which courts are authorized to alter [arbitration] awards" as set out in CPLR 7511 (b) or (c) for vacating or modifying an arbitration award", which provisions apply to the arbitrator's failure to award the City a specific dollar amount for the value of benefits received by Lee, "and the court had no power to disturb the award apart from the grounds set forth in those subdivisions."

The court, Justice Nemoyer dissenting, dismissed the City's Article 75 petition seeking confirmation of the arbitration award in favor of the City "for lack of personal jurisdiction" over the grievant.

* Under the Policy, "[a]ny Officer . . . shall have a right to a representative of his or her choosing, and at his or her own cost, at any stage of this procedure, and shall be given a reasonable opportunity to . . . obtain a representative and/or counsel." Lee exercised that right and retained an attorney to represent her in the arbitration conducted before arbitrator.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05077.htm