An arbitral awards may vacated, in whole or in part, if it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power

An individual [Petitioner] employed by the Department of Corrections and Community Supervision [DOCCS] was suspended without pay and subsequently served by DOCCS with a notice of suspension charging her with six instances of misconduct and imposing a penalty of dismissal.*

Petitioner waived her right to an agency-level hearing and the matter proceeded directly to arbitration. Following a hearing, the arbitrator, among other things, found Petitioner guilty of two of the charges of misconduct and imposed a one-month suspension as a penalty. The arbitrator also awarded Petitioner back pay for the period of interim suspension prior to the hearing. When DOCCS failed to pay Petitioner back pay for the time of her interim suspension, Petitioner commenced a CPLR Article 75 proceeding to confirm the award. DOCCS cross-moved to vacate the award insofar as it required the payment of back pay for the period of the interim suspension.

Supreme Court confirmed the award, denied DOCCS' cross motion and DOCCS appealed the court's ruling, contending that the arbitrator's award of back pay for the period of interim suspension exceeded his authority.

The Appellate Division overturned the Supreme Court's ruling, pointing out that:

1. "Judicial review of arbitral awards is extremely limited [but] a court may vacate an award when it violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on an arbitrator's power";

2.  "[A]lthough an arbitrator's interpretation of contract language is generally beyond the scope of judicial review, where a benefit not recognized under the governing CBA is granted, the arbitrator will be deemed to have exceeded his or her authority"; and

3. "[I]f the arbitrator imposes requirements not supported by any reasonable construction of the CBA, then the arbitrator's construction[,] in effect, made a new contract for the parties, which is a basis for vacating the award."

Here, the Appellate Division noted, "the arbitrator's award of back pay for the period of interim suspension was based upon a determination that DOCCS lacked probable cause to suspend petitioner." However, said the court, the relevant provision set out in the CBA states that "[s]uspensions without pay . . . shall be reviewable by a disciplinary arbitrator . . . to determine whether the [respondent] had probable cause."

Citing Matter of Livermore-Johnson [New York State Dept. of Corr. & Community Supervision], 155 AD3d at 1394, the court pointed out that it had previously held that hearing evidence should be considered by the arbitrator in determining probable cause." Here, however, the Appellate Division found that the arbitrator "did not rely on the hearing evidence to reach this determination, but instead relied solely on the information contained in the notice of suspension and referenced the Livermore-Johnson decision, which is an earlier decision that he rendered regarding the same CBA but a different employee."

In the words of the Appellate Division, "[i]n Livermore-Johnson, the arbitrator concluded that the suspension notice at issue in and of itself did not establish probable cause [and when reviewed by this Court] we affirmed Supreme Court's judgment vacating the arbitrator's award, holding that the arbitrator exceeded his authority by failing to consider hearing evidence and imposing the new requirement that probable cause be established in the notice of suspension."

Finding the record underlying the instant action "makes clear that the same error occurred here," the Appellate Division said that that portion of the order and judgment that orders back pay for [Petitioner] during the period of interim suspension must be vacated and the matter remitted for a rehearing on that issue."

* The terms of Petitioner's employment were governed by a collective bargaining agreement [CBA] that contained procedures that DOCCS was required to follow when seeking to discipline an employee.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04526.htm

The statute of limitations for filing an Article 78 petition challenging an regulation adopted by a government entity starts to run on the effective date of the regulation

General Municipal Law §209-q(1)(a) requires that individuals satisfactorily complete an approved municipal police basic training program prior to appointment as a police officer on a permanent basis. A certificate of completion issued upon completion of an approved training course remains valid, as relevant in this appeal, during the holder's continuous service as a police officer and during certain specified periods of "interruption" from service (see General Municipal Law §209-q[1][b]).* The State's Division of Criminal Justice Services [DCJS] is required by law to maintain a registry of all full-time and part-time police officers in the State and all agencies employing police officers are required to immediately report to DCJS when any officer it has employed ceases to so serve.

Executive Law §837[13] authorizes DCJS to adopt such regulations "as may be necessary or convenient to the performance of its duties." DCJS had adopted regulations requiring an agency employing police officers immediately notify DCJS when a police officer it had employed ceased to serve as a police officer and to indicate the reason for his or her ceasing to serve as a police officer, including reporting his or her "removal for cause".** 

Removal for cause included, as relevant in this action, resignation while a disciplinary proceeding was pending against the police officer pursuant to Civil Service Law §75 or pursuant to another statute or a contract disciplinary procedure negotiated pursuant to the Taylor Law.***

Among the issues addressed by the Appellate Division in this action was the effective date of a regulation adopted by DCJS for the purposes of determining the statute of limitations for timely filing a CPLR Article 78 petition seeking to annul a determination made by DCJS pursuant to the challenged regulation.

In April 2018, two former police officer [Plaintiffs] initiated proceedings and actions for declaratory judgments seeking to annul DCJS's determinations to invalidate their respective police officer basic training certificates. Supreme Court "converted these proceeding/action to a CPLR Article 78 proceeding upon consent of the parties" and then dismissed the Article 78 action as untimely. Plaintiffs appealed.

The Appellate Division noted that although the parties concede that this proceeding was governed by the four-month statute of limitations set forth in CPLR §217(1), they disagree as to when their respective causes of action arose and, in the words of the court, "their claims for relief are ultimately grounded on challenges to the validity of the regulations that were promulgated by DCJS in 2016 and 2017" in consideration of their status as police officers.

Citing Thrun v Cuomo, 112 AD3d 1038, the Appellate Division opined that as the challenged regulations "were quasi-legislative acts ... challenges to the validity of regulations accrued when the regulations become effective." Accordingly, explained the court, "inasmuch as the regulations became effective more than four months before this proceeding was commenced, Supreme Court properly found that [Plaintiffs' claims are time-barred."

Addressing an argument raised by one of the Plaintiffs whereby the Plaintiff asserted that he had submitted "his irrevocable resignation letter" on September 19, 2016 and that it had expressly provided that his resignation would be effective on October 31, 2016, five days after the regulations were adopted, the Appellate Division observed that the resignation was submitted in settlement of disciplinary charges that could have resulted in Plaintiff's removal.

Thus, said the court, Plaintiff's "arguments that he resigned before the regulations were enacted or, alternatively, that no disciplinary charges were pending on the effective date of his resignation are precluded by his acceptance of the benefits of the settlement, namely, being permitted to resolve the pending disciplinary charges by resigning and his further receipt of employment benefits from September 19, 2016 through the effective resignation date of October 31, 2016." 

* Interruption means separation from employment as a police officer "by reason of such officer's leave of absence, resignation or removal, other than removal for cause" (see General Municipal Law §209-q[1][c]).

** See 9 NYCRR 6056.2(g), employees removed for incompetence or misconduct.

*** 4 NYCRR 5.3(b) provides in pertinent part, "... when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation." Also, where necessary and appropriate, such disciplinary action may be conducted in absentia [see Mari v Safir, 291 AD2d 298].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04524.htm

Selection of a medical officer to examine an employee terminated from her position pursuant to §72.5 of the Civil Service Law to determine the individual's "fitness for reinstatement" to the position

An individual [Plaintiff] was placed on "ordinary disability leave" involuntarily by the appointing authority pursuant to Civil Service Law §72(5).* About two years later Plaintiff was terminated from her position by the appointing authority pursuant to Civil Service Law §73.**

When she sought to be reinstated to her position the Department of Citywide Administrative Services (DCAS) designated an outside entity, JurisSolutions, to provide a medical officer to examine Plaintiff to determine her fitness to return to duty. Following the medical examination, Plaintiff filed a CPLR Article 78 petition contending that the physicians that had conducted her fit-for-duty evaluation were unqualified.

The Appellate Division dismissed Plaintiff's cause of action, holding that DCAS did not improperly delegate its duty to select a medical officer to an outside entity, JurisSolutions.

Both Civil Service Law §72(1) and §73 essentially provide that "When in the judgment of an appointing authority an employee is unable to perform the duties of his or her position by reason of a disability . . . the appointing authority may require such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction."

The court, noting that neither §72(1) or §73 mandates any method that the "civil service department or municipal commission having jurisdiction" must use to select the medical officer, and nothing in the text prohibits DCAS from employing a procurement process to select the medical officer who will conduct the evaluation.

The Appellate Division then cited Lazzari v Town of Eastchester, 20 NY3d 214, a case involving a public employee on "worker's compensation leave" pursuant to §71 of the Civil Service Law, in which the Court of Appeals opined "Although Civil Service Law §71 does not indicate to whom the certification must be made, read in context, it is clear that the certification is made to the Department of Human Resources acting as a civil service commission, the body that arranges for the examination and to whom the results of such an examination are reported. Indeed, the purpose of section 71 is to involve a neutral agency and a physician, independent of both the employee and the employer, with appropriate oversight."

The Appellate Division, noting that "Although JurisSolutions provides the doctors, DCAS maintains complete control over the selection process," rejected Plaintiff's contention that the doctors that conducted her fit-for-duty evaluation were unqualified as not being supported by the record, and the hearing officer's determinations concerning the doctors' credibility should not be disturbed.

* Civil Service Law §72(5), in pertinent part, provides "Notwithstanding any other provisions of this section, if the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with operations, it  may place such employee on involuntary leave of absence   immediately."

** Civil Service Law §73 of the Civil Service Law provides, in pertinent part, "When an employee has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workmen's compensation law, his employment status may be terminated and his position may be filled by a permanent appointment."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04658.htm

Failure to provide a brief adjournment of an administrative disciplinary hearing to permit the attorney for the accused to be present held an abuse of discretion

A State University of New York [SUNY] student [Student] was served with multiple disciplinary charges alleging misconduct. At the commencement of the scheduled administrative disciplinary hearing Student requested a three-hour adjournment of the  hearing so that his attorney could attend the proceeding. SUNY denied Student's request and proceeded with the disciplinary hearing notwithstanding the absence of Student's attorney.

Student ultimately challenged SUNY's decision and the Court of Appeals, reversing a ruling by the Appellate Division to the contrary, annulled SUNY's disciplinary determination and remanded the matter to the Appellate Division, indicating that should SUNY elect to proceed with the disciplinary action, it must hold a new disciplinary hearing.

The Court of Appeals explained that in consideration of "the particular circumstances of this case" it had found that SUNY had abused its discretion, as a matter of law, when it declined to grant the adjournment Student had requested to permit his attorney to be present at the hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04449.htm

Appellate Division reviews an administrative disciplinary determination by the Director of the Administrative Hearings Unit of The New York Justice Center for the Protection of People with Special Needs

While most administrative disciplinary actions involving public sector employees are presently processed in accordance with the terms and conditions set out in a collective bargaining agreement, in some instances other laws, rules and regulations will control. 

The O'Grady decision by the Appellate Division, the full text of which is set out below, illustrates one such type of administrative disciplinary procedure and the individual's appeal from a determination made after hearing by the appointing authority conducted pursuant to Social Services Law §494 and 14 NYCRR 700.6[a]:

Matter of O'Grady v Kiyonaga

2019 NY Slip Op 04170

Decided on May 29, 2019

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Todd L. Crawford, P.C., Roosevelt, NY, for petitioner.

Letitia James, Attorney General, New York, NY (Judith N. Vale and Linda Fang of counsel), for respondent.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of David Molik, Director of the Administrative Hearings Unit of The New York Justice Center for the Protection of People with Special Needs dated August 5, 2016. The determination adopted the findings of fact and conclusions of law of an Administrative Law Judge dated July 13, 2016, made after a hearing, that the petitioner committed category three neglect as defined by Social Services Law §493(4)(c), and denied the petitioner's request that the subject substantiated report of neglect dated November 25, 2014, be amended and sealed.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The petitioner is a teacher who was employed, at relevant times, by Ferncliff Manor School (hereinafter Ferncliff Manor), a facility that is certified by the Office of People with Developmental Disabilities. In 2013, the New York Justice Center for the Protection of People with Special Needs (hereinafter the Justice Center) received a report alleging that the petitioner committed neglect by, inter alia, failing to properly supervise a service recipient (hereinafter the student) on September 10, 2013. The report alleged that the petitioner failed to properly monitor the actions of the student on a playground on the Ferncliff Manor property and that the student absconded from the property and reached a nearby street, where he was found by a bystander who placed him into a vehicle.

Following an investigation by the staff of Ferncliff Manor, the Justice Center substantiated the allegation of neglect in a report dated November 25, 2014. The petitioner exercised her right to a hearing before an Administrative Law Judge (see Social Services Law §494; 14 NYCRR 700.6[a]). The Administrative Law Judge found, upon the hearing, that a preponderance of the evidence showed that the petitioner committed a category three act of neglect (see Social Services Law §§493[3][a][i]; [4][c]; 494[1][a]; 14 NYCRR 624.5[j][1][i]; 700.4-700.5). David Molnik, Director of the Administrative Hearings Unit of the Justice Center, adopted the Administrative Law Judge's findings and recommended decision and denied the petitioner's request to amend and seal the substantiated report (see 14 NYCRR 700.13[a]). The petitioner commenced this proceeding against Jay Kiyonaga, individually and as Acting Executive Director of the Justice [*2]Center, pursuant to CPLR 78 to review that determination. By order dated June 28, 2017, the Supreme Court, Westchester County, transferred the proceeding to this Court pursuant to CPLR 7804(g).

In this proceeding, the petitioner seeks to annul the determination of the Justice Center, contending that it was not supported by substantial evidence (see CPLR 7804[g]). Social Services Law § 488(1)(h) defines neglect as "any action, inaction or lack of attention that breaches a custodian's duty and that results in or is likely to result in physical injury or serious or protracted impairment of the physical, mental or emotional condition of a service recipient." Social Services Law §493(4) sets forth, as relevant, three categories of reports of abuse or neglect perpetrated by a custodian. The particular category designation depends on the nature and severity of the conduct, and each category carries with it different consequences (see Matter of Anonymous v Molik, 32 NY3d 30, 35-36). Category one is limited to a specified list of "serious physical abuse, sexual abuse or other serious conduct" (Social Services Law §493[4][a]), and category two contains conduct that "seriously endangers the health, safety or welfare of a service recipient" (Social Services Law § 493[4][b]). The third category encompasses all other acts of abuse or neglect that do not rise to the level of conduct as "described in categories one and two" (Social Services Law §493[4][c]).

At an administrative hearing to determine whether a report of category three neglect is substantiated, the Justice Center is required to establish, by a preponderance of the evidence, that the subject committed abuse or neglect (see Matter of Anonymous v Molik, 32 NY3d at 34). Upon review of such an administrative determination made after an evidentiary hearing, the determination of the Justice Center must be upheld if supported by substantial evidence (see CPLR 7803[4]; Matter of Williams v New York State Justice Ctr. for the Protection of People with Special Needs, 151 AD3d 1355, 1356-1357).

Here, the determination of the Justice Center was based on substantial evidence. The hearing evidence showed, inter alia, that prior to this incident, the staff at Ferncliff Manor developed a mandatory Individual Plan of Protective Oversight (hereinafter IPOPO) for the student. That IPOPO, which was developed with input from teachers and other professionals, provided, inter alia, "[l]ine of sight - staff is to be within 3 feet of [the student] due to hyperactivity, impulsivity and running," and indicated that the student was at a "HIGH RISK" for "running/wandering away." The IPOPO defined the term "line of sight" as follows: "Staff will ensure the individual is always within their line of sight. This does not mean the staff member needs to be constantly looking at the student/resident, but rather be able to see the person at any given time."

The hearing evidence showed that at the time of this incident, there were four staff members supervising the student and his five classmates, as was required by the policy of the facility: the petitioner teacher and three aides. The petitioner acknowledged that she was not directly watching the student when he absconded, and that she did not see the student abscond from the playground. The student was not located until after he had crossed the playground, breached a fence, run to a nearby street, and encountered the individual who placed him in a vehicle. Notably, the petitioner did not testify that she had directed any of her aides to specifically supervise the student at the time of the incident.

Under these circumstances, substantial evidence supports the determination of the Justice Center that the petitioner committed category three neglect (see Matter of Williams v New York State Justice Ctr. for the Protection of People with Special Needs, 151 AD3d at 1356-1357; see also Matter of Kelly v New York State Justice Ctr. for the Protection of People with Special Needs, 161 AD3d 1344).

Therefore, the determination should be confirmed, the petition denied, and the proceeding dismissed on the merits.

SCHEINKMAN, P.J., DILLON, MALTESE and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court