Determining the appropriate "judicial scrutiny standard" when considering an application to vacate an arbitration award

In a proceeding brought by an employee [Plaintiff] pursuant to CPLR Article 75 seeking to vacate an arbitration award, Supreme Court granted that branch of the Plaintiff's petition that asked the court to vacate the disciplinary penalty of termination that had been imposed on him. The employer objected and filed an appeal with the Appellate Division.

The Appellate Division reversed the Supreme Court's ruling "on the law," with costs, reinstated the penalty of dismissal from the position imposed by the arbitrator and remitted the matter to the Supreme Court for the confirmation of the arbitration award pursuant to CPLR §7511(e).

Citing Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, the court explained that the arbitration proceeding at issue, which was conducted pursuant to the parties' collective bargaining agreement, was consensual in nature and therefor subject to the limited scope of review established by CPLR §7511. Supreme Court, however, had applied the "closer judicial scrutiny standard" which was typically used by courts  reviewing an award that resulted from a compulsory arbitration process.

A "preponderance of the evidence" is the standard used in disciplinary actions where arbitration is not mandated and requires that the evidence for one side outweighs evidence for the other side by some degree, however minute, and the preponderance of the evidence standard generally applies only when the penalty of dismissal is accompanied by some added stigma. 

Contrary to the Supreme Court's determination, the Appellate Division held that the penalty of termination from employment was not irrational, and the penalty, albeit harsh, did not violate any strong public policy or clearly exceed an enumerated limitation on the arbitrator's power.

In an Education Law §3020-a disciplinary arbitration, an Educator was served with disciplinary charges of alleging the Educator was guilty certain misconduct. The  arbitrator sustained certain of the charges and specifications alleging  misconduct brought against the Educator and imposed the penalty of termination from his position. Educator appealed,* contending that the arbitrator's determination was arbitrary and capricious because the arbitrator did not resolve issues of credibility in his favor.** The Appellate Division sustained the arbitrator's ruling, pointing out that where the obligation to arbitrate arises as the result of a statutory mandate, as is the case in Education Law §3020-a disciplinary procedures, the arbitrator’s determination is subject to "closer judicial scrutiny" -- i.e., greater scrutiny than it might otherwise receive where submitting the matter to arbitration is a decision of the parties. Indeed, said the Appellate Division, "An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious."

Further, a court in reviewing a decision that resulted from compulsory arbitration inquires as to “whether the decision was rational or had a plausible basis," but otherwise accepts the arbitrators' credibility determinations, even where, as noted above, there is conflicting evidence and room for choice exists."

Accordingly, the Appellate Division rejected Educator’s appeal, explaining that in the event "the evidence is conflicting and room for choice exists," a court may not weigh the evidence or reject the choice made by the arbitrator.

* See Powell v Board of Educ. of Westbury Union Free School Dist., 91 AD3d 955, affirmed 30 NY2d 889.

** In Matter of Berenhaus v Ward, 70 NY2d 436, the Court of Appeals held that when reviewing §3020-a compulsory arbitrations proceedings court  should accept the hearing officer's credibility determinations, even where there is conflicting evidence and room for choice exists.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05548.htm

The New York Department of Civil Service has posted a General Information Bulletin No. 19-05 concerning identifying certain positions in the non-competitive class with the Greek letter "phi" [Φ].

GENERAL INFORMATION BULLETIN No. 19-05

TO: Department and Agency Directors of Human Resource, Personnel and Affirmative Action Officers

FROM: Allen Jordan, Manager (Commission Operations)

SUBJECT: Phi tag Designation Criteria

DATE: May 30, 2019

Please be advised that pursuant to Civil Service Law section 42(2-a), the Civil Service Commission is the entity empowered to designate, among positions in the non-competitive class, those positions which are confidential or require the performance of functions that formulate or influence policy in an agency. Positions so designated are recorded in Appendix 2 of the Rules for the Classified Service (the non-competitive class) with the Greek letter "phi."

When seeking approval for non-competitive classification of a position, agencies must provide a detailed explanation of the position, duties and responsibilities for which Commission determination will be sought. The explanation should include a description of why a phi designation is requested.

Alternatively, the Commission may choose to apply a phi designation to a given position, even if the phi designation has not been requested by an agency.

To provide clarity, the phi designation criteria for the Commission's consideration includes the following:

Non-competitive positions where the duties include acting in a confidential capacity to an appointing authority or having a close relationship with an appointing authority may be designated as confidential positions. Merely dealing with sensitive and/or confidential information will not necessarily justify a phi designation.

Non-competitive positions where the duties include formulating or influencing policy may be phi-designated.

Incumbents of phi-designated positions cannot acquire tenure protection in such positions unless they are honorably discharged wartime veterans or exempt volunteer firefighters*, as noted in Civil Service Law section 75(1)(b).

* Exempt volunteer firefighters should not be confused with positions in the exempt jurisdictional class.

Termination of employment ruled "disproportionate to the offense" under the circumstances and remanded to the appointing authority for the imposition of a lesser penalty

In this appeal to the Appellate Division was asked to review a determination by a appointing authority, [Respondent], that resulted in the termination of a school bus driver,   [Plaintiff] after Respondent found Plaintiff guilty of Civil Service Law §75 disciplinary charges alleging that Plaintiff had slapped a special needs student, [SNS], in the course of her attempts to calm him.

The Appellate Division's decision reports that on the day of the incident, the SNS, in addition to other acts, commenced to yell and scream when he was given a book instead of the toy truck that he was accustomed to receiving upon boarding the bus. It was undisputed that SNS ultimately became very aggressive and started to swing his arms at a social worker and punched Plaintiff in her stomach. Petitioner's reaction to the punch was to slap the student on the face with her open hand.*

The Appellate Division commented that Respondent's determination finding Plaintiff guilty of three disciplinary charges was supported by substantial evidence. The court, however, citing the so-called Pell Doctrine,** then concluded that, in light of Respondent's otherwise unblemished disciplinary record during her 20 years of service as a school bus driver, including five years driving special needs students, termination, "absent any other previous progressive disciplinary steps, is so disproportionate to the offense committed as to shock one's sense of fairness."

The court explained that in this instance Plaintiff was confronted by a student who, due to his special needs, lost control of his behavior and was significantly disrupting the other students on the bus, some of whom were also struggling to behave. Further said the court, Plaintiff's "conduct was not premeditated and, under these circumstances, appears to be the result of a momentary lapse of judgment."

In addition, the decision indicates that "there is nothing in [Plaintiff's]  employment history to suggest that she will ever engage in similar conduct again" and that the record reflects the fact that "although [Plantiff] had to 'separate or corral' students on occasion, she had never previously made physical contact with a student and was never reprimanded for her actions."

In this 3 to 2 decision, the majority of the Appellate Division panel opined that "[a]lthough termination in these circumstances shocks our sense of fairness, we do not condone [Plaintiff's] behavior, and only conclude that some form of discipline short of termination would be appropriate."

The court then remanded the matter to the Respondent "for the imposition of an appropriate penalty less severe than termination."

* As a result of the incident, Plaintiff had been subjected to criminal charges, which were ultimately dismissed "in furtherance of justice."

** Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05439.htm

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Lawmakers increased wages and benefits for teachers, first responders and other public employees in some 20 states

Governing - Featured Story - July 22, 2019

Posted on the Internet at:

https://www.governing.com/topics/mgmt/gov-2019-legislatures-salary-benefit-increases.html?utm_term=To%20Keep%20Public%20Workers%2C%20States%20Offer%20New%20Salaries%20and%20Benefits&utm_campaign=To%20Keep%20Public%20Workers%2C%20States%20Offer%20New%20Salaries%20and%20Benefits&utm_content=email&utm_source=Act-On+Software&utm_medium=email

Appointing authority rejects hearing officer's recommendation to continue disability benefits being provided police officer pursuant to General Municipal Law §207-c

The petitioner [Police Officer] in this CPLR Article 78 action suffered a job-related injury and was granted benefits pursuant to General Municipal Law §207-c* by the appointing authority Subsequently Police Officer  returned to work on a light-duty assignment and later was examined by a physician on behalf of the appointing authority. The physician reported that Police Officer was capable of returning to work on full duty as a police officer without restrictions.

The appointing authority terminated the Police Officer's §207-c benefits and directed that "he return to full duty, without restrictions." In accordance with the relevant provisions set out in a collective bargaining agreement [CBA], the Police Office requested a hearing and ultimately the designated hearing officer recommended that Police Officer continue to be provided with GML §207-c benefits. Notwithstanding the hearing officer's recommendation, the appointing authority issued a final determination denying the Police Officer's application for §207-c benefits finding that "based on the entire record" Police Officer was capable of performing his full duties as a police officer. Upon being notified that his light-duty assignment was terminated and being directed to return to work full time, without restrictions, Police Officer commenced this CPLR Article 78 proceeding, which Supreme Court transferred to the Appellate Division for its consideration.

The Appellate Division, citing Matter of Campo v City of Mount Vernon, 156 AD3d 694, explained that "[j]udicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record." Here, said the court, the hearing procedures were negotiated by the appointing authority and the Police Officer's union and memorialized in a CBA. The CBA provided that hearing officer was to issue findings of fact and make a recommendation on the questions certified to him. The appointing authority, however, retained full power and authority to render the final determination on the questions.

Noting that the hearing officer's findings are entitled to considerable weight, the Appellate Division explained that such findings "are not conclusive and may be overruled by the administrative authority, provided that the final determination is supported by substantial evidence."

Here, said the court, there was conflicting medical evidence and "it was for the administrative agency to choose between the conflicting opinions, and the courts are not free to reject the choice made by the administrative agency where room for choice exists." In words of the Appellate Division, [t]he testimony and opinion of the physician who examined the [Police Officer] on behalf of the [appointing authority] was rational and fact-based and, since a reasonable mind could accept that testimony and opinion, the determination of the [appointing authority] is supported by substantial evidence."  

The Appellate Division confirmed the appointing authority's determination terminating Police Officer's  light-duty assignment and directing him to return to work full time and dismissed the Police Officer's petition "on the merits, with costs."

* GML 207-c provides for the payment  of the salary, wages, medical and hospital expenses of   law enforcement personnel suffering injuries or illness incurred in the performance  of their law enforcement  duties. GML 207-a provides similar benefits to firefighting personnel suffering injuries of illness incurred in the performance of their firefighting duties.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05670.htm

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Disability Benefits for fire, police and other public sector personnel - A handbook addressing retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information click on http://booklocker.com/books/3916.html