Some procedural consideration relevant to efforts to vacate an arbitration award

Some procedural consideration relevant to efforts to vacate an arbitration award

Yates v County of Nassau, 2019 NY Slip Op 01219, Appellate Division, Second Department

The employee [Respondent] in this action was terminated from his position with the County of Nassau [Nassau]. He filed a grievance challenged his dismissal pursuant to a collective bargaining agreement between Appellant and the Civil Service Employees Association and the matter proceeded to arbitration. The arbitrator [1] issued an "opinion and award" in 2013 and [2] about a year later issued a "final award" and [3] ultimately issued a "consent award" dated July 15, 2015.

In February 2017 Respondent initiated this CPLR Article 75 proceeding in an effort to vacate the final award and to "reopen" the 2013 opinion and award.* Nassau moved to dismiss Respondent's Article 75 petition, arguing that the proceeding was time-barred. The Supreme Court denied Respondent's petition, dismissing the proceeding as time-barred. Supreme Court, however then confirmed the "awards of the arbitrator" and Nassau appealed from so much of the Supreme Court's order as confirmed the three arbitration awards.

The Appellate Division said that the Supreme Court, after denying the petition and dismissing the proceeding as time-barred, should not have confirmed the three awards.

The court pointed out that:

1. Neither the Respondent nor Nassaucommenced a proceeding or moved to confirm any of the three awards;

2. Although CPLR 7511(e) provides, in relevant part, that "upon the denial of a motion to vacate or modify, [the court] shall confirm the award," this directive applies only where a party has filed an application to vacate or to modify an arbitration award and such action has been denied on the merits; and

3. Where the proceeding has been found to be time-barred, a court has no discretion to address the merits of the matter as to do so would have the practical effect of impermissibly extending the statutory time limitations set out in CPLR Article 75.

Finally, observed the Appellate Division, "to automatically confirm the three awards, when the proceeding to vacate/modify two of the awards is time-barred and there has been no application to confirm any of the awards, deprived  Nassau of an opportunity to object to confirmation."

* Respondent did not seek any relief from the 2015 consent award.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01219.htm

A judge's vote in an unannounced opinion held not to survive his or her death

A judge's vote in an unannounced opinion held not to survive his or her death

Rizo v Yovino, 586 U. S. ____ (2019) [No. 18–272. Decided February 25, 2019]

Chief Judge of the United States Court Appeals for the Ninth Circuit Stephen Reinhardt wrote the court's en banc opinion in Rizo v Yovino. 

Judge Reinhardt, however, died on March 29, 2018 while the court's decision in the matter was not announced until April 9, 2018. A posthumous footnote in the opinion notes that "Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death."

By counting Judge Reinhardt’s vote, the Ninth Circuit deemed Judge Reinhardt’s opinion to be a majority opinion, thereby constituting a precedent that all future Ninth Circuit panels must follow.

The U.S. Supreme Court vacated the ruling, holding that should a judge vote and then die before the decision is announced, his or her vote with respect to the decision "does not count," explaining that a judge may change his or her position up to the moment when a decision is released.

Noting that "[w]ithout Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed," the Supreme Court ruled that:

1. "Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority; and

2. "That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death; and

3. "... federal judges are appointed for life, not for eternity."

The court granted the then pending petition for certiorari, vacated the Ninth Circuit's decision in Rizo v Yovino and remand the case "for further proceedings consistent with this opinion."  

The decision is posted on the Internet at:

https://www.supremecourt.gov/opinions/18pdf/18-272_4hdj.pdf

Where a regulation permits an employee to rescind his or her resignation the appointing authority's decision should made within a reasonable period of time

Where a regulation permits an employee to rescind his or her resignation the appointing authority's decision should made within a reasonable period of time

Joyce v New York City Dept. of Educ., 2019 NY Slip Op 01183, Appellate Division, First Department

In July 2012 the New York City Department of Education [DOE] rejected an educator's [Teacher] request for rescission of the resignation he had submitted in August 2011. Teacher the initiated an Article 78 action challenging DOE decision and in 2013 Supreme Court ruled in Teacher's favor directed DOE to accept Teacher's request for reinstatement. DOE appealed but the Appellate Division unanimously affirmed the Supreme Court's ruling.

For almost four years, however, DOE failed to reinstate Teacher, during which period there was litigation between the parties. However it was not until Teacher filed a motion for contempt did the Chancellor finally respond to, and deny, Teacher's request for reinstatement, apparently in consideration of Teacher's "unsatisfactory year-end performance rating for the 2010-2011 academic year."

To further confound the situation, Teacher's unsatisfactory year-end performance rating apparently relied on by the Chancellor was ultimately annulled by the Appellate Division in May of 2018 [see Matter of Joyce v City of New York, 161 AD3d 488].

Under the circumstances, the Appellate Division said that it found that "good faith and fairness demand that a decision on a request for rescission of resignation pursuant to Chancellor's Regulation C-205(29) be made within a reasonable time." In so doing, the court rejected DOE's "suggestion that the Chancellor has the discretion to wait more than three years before making such a decision, without providing a reason for the delay."

Noting that Supreme Court had directed DOE, in an order issued in May 2013, to follow its own stated procedure by accepting the rescission letter and reinstating Respondent, subject to the Chancellor's approval as provided in the regulation, the Appellate Division held that DOE's delay "was unacceptably long and effectively operated to subvert the court's order."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01183.htm

Disciplinary settlement agreements are typically subject to "narrow construction"

Disciplinary settlement agreements are typically subject to "narrow construction"

Marine Engineers' Beneficial Assn. v City of New York, 2019 NY Slip Op 01327, Appellate Division, First Department

The term "narrow construction" used to describe the application of a law, rule or regulation based on a literal and narrow interpretation of the text of the provision. Marine Engineer's is an example of "narrow construction" in the interpretation and application of the terms and conditions set out in  a disciplinary settlement agreements.

A Chief Marine Engineer [CME] of a Staten Island ferryboat was found asleep on duty during his shift. The CME's union and the City of New York [City] entered into an agreement to settle the matter in which the CME agreed to a 30-day suspension without pay "in full satisfaction of the disciplinary matter."

Upon returning to work following the suspension without pay, the CME was told that he could not work as a Chief Marine Engineer aboard vessels in service and could not bid for job assignments in his title. Although CME retained his CME title and hourly rate of pay for regular and overtime duty, the number of overtime hours available to him with respect to his assignments in the lower title to which he was permitted to bid was limited. CME objected to the City's action and ultimately the union submitted the matter to arbitration.

The arbitrator found that the City's restricting CME's bidding rights after his suspension constituted a de factodemotion and violated the section of the controlling collective bargaining agreement that provided as follows:

"Per annum Licensed Officers shall have the right to bid for jobs on the basis of seniority. Such bid will be permanent for one year. Changes may be made before the expiration of the year by mutual consent of the Licensed Officers, subject to prior approval by the Employer. Such approval shall not be unreasonably withheld."

City filed an appeal pursuant to CPLR Article 75 seeking an order vacating the arbitration award. Supreme Court denied the City's motion and granted the union's motion to confirm the award. Subsequently the Appellate Division unanimously affirmed the Supreme Court's rulings.

The City had contended that the arbitration award, which found that the CME had the right to bid and work as a full-duty CME without regard to the incident that gave rise to the settlement agreement, violated public policy with respect to maritime passenger safety.

The Appellate Division, citing Matter of Local 333, United Mar. Div., Intl. Longshoreman's Assn., AFL-CIO v New York City Dept. of Transp., 35 AD3d 211, rejected this argument, explaining that the City's safety concerns, "albeit important, are not 'embodied in constitutional, statutory or common law [that] prohibit a particular matter from being decided or certain relief from being granted by an arbitrator.'"

The court also rejected City's claim that its action was consistent with its "management prerogative pursuant to New York City Administrative Code §12-307(b) as well as its reliance on 18 USC §1115 [Misconduct or neglect of ship officers], explaining neither could be read "to bar or add to the actions taken by the parties' representatives to resolve this disciplinary matter."

Another decision illustrating limitations imposed by a disciplinary settlement agreement with respect to action by the appointing authority is Taylor v Cass, 122 A.D.2d 885.

The disciplinary settlement agreement controlling in Taylor provided that the appointing authority could summarily terminate the employee without a disciplinary hearing if, in the opinion of Taylor's superior, Taylor's "job performance was adversely affected by his intoxication on the job during the next six months.”

Taylor was terminated during this six month period without a hearing "for failing to give a fair day’s work and sleeping during scheduled working hours." However, there was no allegation that Taylor had been intoxicated on the job listed among the reasons alleged for his being summarily terminated from his position by the appointing authority.

Taylor challenged his termination and won reinstatement with back salary. The Appellate Division said that Taylor's dismissal without notice and hearing was improper because he had not been terminated for the sole reason specified in the disciplinary settlement agreement - "intoxication on the job during the next six months."

The CME's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01327.htm

Amendment to Title 22 NYCRR codifying the practice that a witness may have counsel present during a Commission hearing

State Commission on Judicial Conduct

PROPOSED RULE MAKING - NO HEARING(S) SCHEDULED

Counsel for Witnesses at Hearings

Source: New York State Register, item I.D. No. JDC-08-19-00006-P

PURSUANT TO THE PROVISIONS OF THE

State Administrative Procedure Act,

NOTICE is hereby given of the following proposed rule:

Proposed Action: Addition of §7000.6(i)(3) to Title 22 NYCRR. Statutory authority: Judiciary Law, §42(5)

Subject: Counsel for witnesses at hearings.

Purpose: To codify the practice that a witness may have legal counsel present during a commission hearing. Text of proposed rule: A new paragraph of subdivision (i) of §7000.6 is added to read as follows: (3) At a hearing, counsel for a witness may be present while his or her client is testifying and may request permission of the referee to consult with the client, but may not object to questions, examine or cross-examine witnesses or otherwise participate in the proceedings.

Text of proposed rule and any required statements and analyses may be obtained from: Marisa E. Harrison, Commission on Judicial Conduct, Corning Tower, Suite 2301, Empire State Plaza, Albany, New York 12223, (518) 453-4600, email: harrison@cjc.ny.gov

Data, views or arguments may be submitted to Marisa E. Harrison at harrison@cjc.ny.gov

Public comment will be received until: 60 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority: Judiciary Law, §42(5).

2. Legislative objectives: The proposed change would clarify that counsel for a witness may be present while his or client is testifying at a Commission hearing, and may request permission of the referee to consult with the client, but may not object to questions, examine or cross-examine witnesses or otherwise participate in the proceedings.

3. Needs and benefits: The proposal seeks to clarify ambiguities and better reflect actual Commission practice that allows a witness to have counsel present during Commission hearings.