Considering the strong policy of including all public employees within the ambit of the Taylor Law, authority to designate certain employees managerial or confidential is to be read narrowly

For the purposes of Article 14 of the Civil Service Law, the Taylor Law, the term "public employee" means any person holding a position by appointment or employment in the service of a public employer except:

[1] judges and justices of the unified court system;

[2] persons holding positions by appointment or employment in the organized militia of the state; and 

[3] persons who may reasonably be designated from time to time as managerial or confidential upon application of the public employer to the appropriate body in accordance with such body's duly established procedures. 

Such persons, however, remain subject to the provisions of §210 of the Taylor Law, "Prohibition of strikes" and §211 of the Taylor Law which provides for obtaining "injunctive relief" where required.

Further, only persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective bargaining pursuant to the Taylor Law or to have a major role in the administration of collective bargaining agreements and, or, negotiated memoranda of understandings, or in personnel administration, provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment, may be designated "managerial" within the meaning of the Taylor Law while only employees who assist and act in a confidential capacity to employees designated "managerial" may be designated "confidential" for the purposes of the Taylor Law.*

Managerial  or confidential employees may not be an officer or a member of any employee organization that is currently, or seeks to become, the certified  or recognized representative of the public employees employed by the public employer of such managerial or confidential employee.

Following the New York City Board of Certification's [the Board] approving an application by the Organization of Staff Analysts [the Organization] to add the title of Senior Auditor to the Organization's collective bargaining unit, the New York City Health + Hospitals [NYC Health] initiated an Article 78 action in Supreme Court seeking a court order annulling the Board's determination. 

Supreme Court dismissed NYC Health's petition. NYC Health appealed but the Appellate Division unanimously affirmed the Supreme Court's decision.

The Appellate Division opined that Supreme Court had properly deferred to the Board's rational interpretation of the applicable statutes, including the Board's finding that the exemption to public employees' eligibility for collective bargaining set out in the Taylor Law is controlling. Citing Viruet v City of New York , 97 NY2d 171, the Appellate Division explained that as the Taylor Law is incorporated into the New York City Health and Hospitals Corporation Act and the exemptions in the Act are substantially consistent with Article 14 of the Civil Service, "the override provision of Unconsolidated Laws §7405(5) does not apply" in this instance.

Noting that the exclusions for managerial and confidential employees are an exception to the Taylor Law's strong policy of extending its coverage to all public employees and are to be read narrowly, the court concluded that here the Board had a rational basis for finding that Senior Auditors were not "managerial" employees within the meaning of the Taylor Law. Although a Senior Auditor specifies how audits are to be conducted and may proposed changes based on the audit's findings, the Appellate Division said that "the Board reasonably found that submitting such nonbinding recommendations" does not constitute "formulat[ing] policy." Further, said the court, the Board also rationally found that Senior Auditors are not "confidential" employees within the meaning of the Taylor Law.

* For the purposes of the Taylor Law, §201.7(b) of the Civil Service Law provides that assistant attorneys general, assistant district attorneys, and law school graduates employed in titles leading to promotion to assistant district attorney upon admission to the New York bar are "managerial" employees. Confidential investigators employed by the New York State Department of Law are "confidential" employees within the meaning of the Taylor Law pursuant to §201.7(b).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02812.htm

By commencing a CPLR Article 78 action involving arbitrable issues, the petitioner may be deemed to have waived his or her right to demand arbitration of those issues

The Village of Bronxville terminated the employment of one of its police officers [Employee] and notified him that his "health insurance coverage, as well as any other insurance coverage that had been provided by the Village, would terminate." Employee objected, contending that the collective bargaining agreement [CBA] between the Village and the Bronxville Police Taylor Act Committee [BPTC] provided that he was entitled to individual and family health insurance coverage as a disability retiree.

The CBA outlined a grievance procedure to resolve "[a]ny dispute arising concerning the interpretation, construction or application" of the terms of the CBA. Under the terms of the CBA, if the dispute was not resolved through the grievance procedure, the parties were to submit the matter to arbitration. Ultimately the Village Board of Trustees denied the grievance. When BPTC served a demand to arbitrate the matter, the Village commenced an CPLR Article 75 proceeding seeking a permanent stay of arbitration of Employee's claim for health insurance benefits pursuant to the terms set out in the relevant collective bargaining agreement.

The Village argued that the BPTC and Employee [1] had waived the right to arbitration the grievance, and [2] that arbitration should be permanently stayed for laches. Supreme Court granted the Village's petition holding that while the BPTC had not waived the right to arbitrate Employee's claim, arbitration should be permanently stayed pursuant to the doctrine of laches and BPTC appealed.  

The Appellate Division agreed with Supreme Court's determination granting a stay of arbitration, but for a different reason. Explaining that the doctrine of laches bars the enforcement of a right where there has been an unreasonable and inexcusable delay that results in prejudice to a party and prejudice may be demonstrated "by a showing of injury, change of position, loss of evidence, or some other disadvantage resulting from the delay," and although the BPTC unreasonably and inexcusably delayed filing a demand for arbitration, the Village failed to demonstrate that it suffered any prejudice as a result of that delay. Thus, concluded the Appellate Division, the doctrine of laches does not bar the arbitration in this instance.

Citing Sherrill v Grayco Bldrs., 64 NY2d 261, the Appellate Division opined that "[l]ike contract rights generally, a right to arbitration may be modified, waived or abandoned." The court then noted that Employee had previously commenced a proceeding pursuant to CPLR Article 78 against, among others, the Village, challenging the Village's determination to terminate his health insurance benefits. In that proceeding Employee had alleged that the Village had breached the collective bargaining agreement by failing to provide him with disability retiree health insurance coverage.*

"By commencing an action at law involving arbitrable issues" pursuant to Article 78 the Appellate Division opined that BPTC and Employee "had waived whatever right [they] had to arbitration," citing Hart v Tri-State Consumer, Inc., 18 AD3d 610.

The Appellate Division then ruled that Supreme Court should have permanently stayed the arbitration on the ground that BPTC and the Employee had waived any right to arbitrate the matter.

* The Appellate Division noted that "Where a party affirmatively seeks the benefits of litigation, in a manner 'clearly inconsistent with [its] later claim that the parties were obligated to settle their differences by arbitration,' the right to arbitrate has been waived."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02710.htm

Medical records related "solely to an employer's hiring practices" are not available to the applicant pursuant to New York's Public Health Law §18 unless necessary to make informed decisions concerning medical treatment

In this Article 78 proceeding the Plaintiff asked Supreme Court to [a] annul the New York-New Jersey Port Authority's [Authority] determination that he was not qualified to serve as a police officer in its public safety department in consideration of the results of his psychological evaluation and [b] to direct the Authority to provide him copies of all of its records related to his psychological evaluation.

Ultimately Supreme Court [a] granted the Authority's motion to dismiss that portion of Plaintiff's petition seeking to annul the Authority's rejection of Plaintiff for appointment as a police officer but [b] granted that portion of Plaintiff's petition seeking a court order requiring the Authority to provide him with "his psychometric testing results related to his psychological evaluation" pursuant to New York's Public Health Law §18.

The Authority appealed and the Appellate Division reversed that portion Supreme Court's judgment that ordered the release of the documents related to Plaintiff's psychometric testing results related to his psychological evaluation. The court explained that Plaintiff was not entitled to his psychometric testing results pursuant to §18 because §18 was intended to give individuals access to their medical records "to obtain necessary information about their medical treatment and condition and to make fully informed choices about their medical care."

Here, however, the court said that in this instance Plaintiff was not seeking to procure these psychological testing results as "necessary information about [his] medical treatment and condition . . . to make fully informed choices about [his] medical care."

Rather, opined the Appellate Division, the Authority's psychological testing results related "solely to its hiring practices," a wholly internal matter, which the Authority characterized as part of "the process used to recruit, screen, and evaluate candidates seeking to serve as police officers." The Appellate Division agreed with this characterization, commenting that this was "a quintessential example of an internal operation and a core employer-employee relations matter."

The court also took note that the Authority, as an interstate compact agency, is not subject to New York legislation governing its "internal operations," e.g. employer-employee relations, "unless both New York and New Jerseyhave enacted legislation providing that the same is applicable to The Port Authority, which is not the case here."

In contrast, however, the Appellate Division, citing Salvador-Pajaro v Port Auth. of N.Y. & N.J., 52 AD3d 303, pointed out that although a bi-state entity, the Authority "is subject to New York's laws involving health and safety, insofar as its activities may externally affect the public."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_02661.htm

Employee terminated "for failing to maintain a minimum qualification of her employment"

An employee [Petitioner] of the Office for Persons with Developmental Disabilities [OPWDD] was suspended from her employment without pay and thereafter charged with six charges alleging misconduct and, or, incompetence related to alleged criminal conduct. Petitioner, was subsequently indicted on a number of criminal charges related to her employment with OPWDD and notified by the Office of the Medicaid Inspector General  that, "based on the pendency of felony charges against her," she was excluded from participation in the State's Medicaid program."

Notified by OPWDD that her employment was subject to termination, Petitioner failed to attend two scheduled meetings for the purpose providing with an opportunity to present documentary evidence showing that she "was not an excluded provider" whereupon OPWDD wrote to Petitioner that her employment was terminated as of close of business on November 1, 2016. On October 26, 2016, following a jury trial, Petitioner was acquitted of all criminal charges for which she had been indicted. Notwithstanding her acquittal of the criminal charges, OPWDD terminated Petitioner effective November 1, 2016. 

In February 2017 Petitioner initiated a CPLR Article 78 proceeding against OPWDD seeking, among other things, reinstatement to her former position, contending that her termination was made without administrative due process and "was otherwise arbitrary and capricious." Supreme Court dismissed her petition and Petitioner appealed.

The Appellate Division affirmed Supreme Courts ruling, rejecting her contention that she was denied due process when OPWDD failed to follow the disciplinary procedures mandated by the Civil Service Law Section 75 and set forth in the relevant collective bargaining agreement.

The court explained that Petitioner not been terminated from employment by OPWDD based upon any allegation of incompetence or misconduct but was terminated "for failing to maintain a minimum qualification of her employment" - continued eligibility for the Medicaid program -- and, therefore, "the disciplinary procedures mandated by the Civil Service Law and the collective bargaining agreement were not applicable in this instance."

Further, opined the Appellate Division, it saw no violation of Executive Law §296, New York State's Human Rights Law, as Petitioner had been terminated for failing to possess a minimum qualification of employment that was "expressly set forth in OPWDD's employee handbook, which indicates that an offer of employment may not be made until a potential candidate has been screened against both the state and federal databases of Medicaid excluded individuals."* This requirement was also set out in a state regulation, a special advisory bulletin and during a mandatory annual Medicaid compliance job training for employees, and was the subject of quarterly screenings to ensure that such employees maintained their eligibility in the Medicaid program.

Accordingly, the Appellate Division rule that Petitioner received all the due process to which she was entitled as "it is not disputed that she received notice of the charge that led to her termination and was provided an adequate opportunity to contest same." Further, said the court, the fact the Petition allegedly regained her eligibility to participate in the Medicaid program based on her subsequent acquittal of the criminal charges brought against her "did not render irrational OPWDD's determination to terminate [Petitioner's] employment in the first instance" and affirmed Supreme Court's dismissal of her Article 78 petition.

*This requirement "was also set forth in a state regulation, a special advisory bulletin and a mandatory annual Medicaid compliance job training for employees, and was the subject of quarterly screenings to ensure that such employees maintained their eligibility in the Medicaid program."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08993.htm

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The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State. To order your copy of The Discipline Book, please go to: http://thedisciplinebook.blogspot.com/

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Morgan Lewis Pro Bono Team to Be Honored for Pro Bono Representation of Immigrants in Detention

The American Immigration Council will recognize the law firm of Morgan Lewis with its Stephen K. Fischel Distinguished Public Service Award on April 11 at The Capitol View at 400 in Washington, D.C. The award, which recognizes individuals or organizations who exhibit an outstanding commitment and dedication to America’s heritage as a nation of immigrants and to the struggle for fair and humane immigration policies in the United States, will be presented at the D.C. Immigrant Achievement Awards reception. 

Notably, Carolyn Silane, an associate at Morgan Lewis’ New Yorkoffice, successfully represented an adoptive parent who was separated from his two-year-old son in the early days of family separation and was denied reunification because the government claimed he was “not the father.”

Morgan Lewis’ pro bono legal services in immigration include helping vulnerable immigrants obtain legal immigration status, which includes providing legal representation to individuals fleeing persecution overseas, undocumented and unaccompanied minors who came to the United Stateswhen they were young, immigrant women whose immigration status is dependent on an abusive spouse, and victims of human trafficking and other crimes. The firm’s team of lawyers have also helped many abused, abandoned, or neglected young children to obtain Special Immigrant Juvenile Status in the United States.

The Council has recognized the achievements of many outstanding immigrants and their advocates. Past honorees include General Colin Powell, Senator Daniel Inouye, the Southern Poverty Law Center, TheDream.Us, and Gerda Weissman Klein.

For more information, contact Maria Frausto at the American Immigration Council at mfrausto@immcouncil.orgor 202-507-7526.