Topics Addressed in NYPPL

NYPPL has summarized and posted almost 6,000 decision. Listed below are the captions of the most frequently accessed postings.

Abolishing a position for economic reasons

Absent a statutory or negotiated administrative hearing procedure, an appointing authority may delegate decision-making authority to the hearing officer

Acquiring tenure in the position by tenure by "operation of law," sometimes referred to as tenure by estoppel or tenure by acquiesce

Actions of an employee prior to his or her promotion may properly form the basis for terminating the individual prior to the completion of his or her probationary period

Administrative due process in disciplinary actions

Administrative tribunal may not rely on evidence not in the record in arriving at its decision

Admitting evidence of prior disciplinary action taken against the charged party

Alcoholism as a defense in a disciplinary action

Amending disciplinary charges "to conform with the testimony" given by a witness in the course of the disciplinary hearing

Anatomy of an administrative disciplinary decision

Appeals involving efforts to remove a member of a school board from office

Appeals to the Commissioner of Education seeking to remove members of a Board of Education for alleged misconduct or alleged neglect of duty

Applicant for performance of duty disability retirement benefits must show that his or her disability was the result of an act of an inmate

Application for retirement benefits must be timely delivered to and received by the retirement system to be operative

Application seeking the removal of an employee of a School District

Applying the Pell Doctrine in a disciplinary action

Appointing authority imposed a more severe penalty than the one recommended by the hearing officer

Appointing authority’s neglecting to make a timely designation of an individual to serve in lieu of the appointing authority in a §75 disciplinary action is a fatal omission

Arbitrator's award may only be vacated by a court if it violates public policy, is irrational or it exceeds specified limitations on the arbitrator's power

Article 78 petition seeking the review of the disciplinary penalty imposed on an employee must raise an issue of substantial evidence to warrant Supreme Court’s transfer of the proceeding to the Appellate Division

Assessing the appropriate penalty to be imposed for unprofessional and disrespectful language in the workplace

Assigning law enforcement personnel to perform light duty while receiving benefits pursuant to §207-c of the General Municipal Law

Attempting to avoid disciplinary action

Authority of the arbitrator

Burden of proof shifts to the first responder if he or she fails to demonstrate a causative link between his or her illness and exposure to toxins at the World Trade Center activates

Burden of serving a proper "notice to appear" at an administrative hearing is the responsibility of the charging party

Challenging a decision to terminate a probationary teacher's employment

Challenging an employee's termination during his or her disciplinary probation period

Civil Service Law §75 requires that a hearing officer appointed to conduct a disciplinary hearing be so designated in writing by the appointing authority

Claiming exempt volunteer firefighter status for the purposes of Civil Service Law §75.1(b)

Claiming the affirmative defense of "privilege"

Commissioner of Education will dismiss an appeal submitted pursuant to Education Law §306, in whole or part, if there are procedural defects or omissions

Commissioner of Education will dismiss an application or appeal involving an officer and, or, a member of the staff of a school district for improper service of the complaint and, or, lack of subject matter jurisdiction.

Common procedural errors or omissions that will bar the Commissioner of Education's considering the merits of an appeal

Comptroller has exclusive authority to determine the validity of a beneficiary designation on an application for death benefits, which determination must be supported by substantial evidence

Conducting disciplinary hearings in absentia

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

Considering breaks in service in determining seniority for the purposes of layoff and reinstatement

Considering the employee's personnel history is setting a disciplinary penalty

Constructive discharge from the position as the result of unlawful acts of discrimination

Counseling memorandum issued to an employee

Court's review of an administrative decision made after an adversarial hearing is limited to considering if the decision is supported by substantial evidence

Credit the opinion of one medical expert over that of another medical expert when reviewing an application for disability retirement

Deficiencies in the performance review process of a probationary teacher that were not merely technical undermined the integrity and fairness of the process

Delegating the authority to make a final disciplinary decision and the determination of the penalty to be imposed to another

Demanding an employee submit his or her resignation from his or her position

Determining “continuous residency” for the purpose of qualifying for public office or employment

Determining an appropriate disciplinary penalty under the circumstances

Determining an educator's seniority for the purposes of layoff

Determining if an administrative agency's decision is arbitrary and capricious

Determining if an employee is eligible for accidental disability retirement benefits

Determining if an incident qualifies as an accident for the purposes determining eligibility for accidental disability retirement benefits

Determining seniority and tenure area of teachers in the event of the abolishment of positions

Determining seniority for the purpose of layoff and establishing an educator's position on a "preferred list" for the purpose of reinstatement

Determining the amount of the General Municipal Law §207-a (2) supplement payable to a firefighter upon his or her retirement for disability because of a work related injury or disease

Determining the appropriate procedure to be followed when filing disciplinary charges against a police officer of a town

Determining the disability benefits due a firefighter as the result of a work-related injury can be complex

Determining the impact of performing light, limited or restricted duty on applications for disability retirement benefits

Determining the status and rights of an employee in the public service terminated from his or her employment

Difficulties result following the appointment of a teacher to an “unauthorized tenure area”

Disability not a defense to charges of excessive absence from work

Disciplinary action follows employee's disrespectful and intimidating behavior towards

superiors

Disciplinary actions pursuant to Education Law §3020-a processed consistent with compulsory arbitration standards

Disciplinary charges must be served on the target of the disciplinary action on or before the expiration of the period set by the controlling statute of limitations

Disciplinary hearing officer may not consider disciplinary charges and specifications not preferred against an employee

Disciplinary hearing officer permitted to "draw the strongest inferences" from the record in the event the charged individual declines to testify at his or her disciplinary hearing

Disciplinary hearing postponed “without prejudice” pending successful completion of a probationary period with another agency

Disciplinary hearings held in absentia

Disciplinary penalty imposed, termination, held reasonable under the circumstances

Disciplinary probation

Discrepancy between the contemporaneous incident reports and the applicant’s testimony at the subsequent hearing presents a credibility issue to be resolved by the hearing officer

Dismissing an employee before he or she has completed his or her probationary period

Distinguishing between an individual's "domicile" and his or her "residence"

Doctrine of Abatement: applied in a criminal action

Doctrine of Collateral Estoppel bars relitigating an issue raised and decided by a judicial tribunal in a prior action or proceeding involving the same parties but does not bar litigating claims involving the same parties that were not previously considered in prior administrative or judicial actions

Doctrine of Legislative Equivalency defeats a Mayor’s unilateral decision to abolish a position in the civil service

Doctrine of primary jurisdiction

Doctrine of Sovereign Immunity held to have been waived with respect to litigation challenging an arbitration award

Does the public have a right of access to a hearing concerning the removal of a member of a school board for official misconduct?

Due process consideration in the event an employee is terminated from his or her probationary period

Educator challenges the abolition of positions and the assignment of her former teaching duties to other teachers

Educator seeking to overturn an unsatisfactory annual performance rating must meet is very high standard of proof

Educator terminated for a continuing pattern of inappropriate behavior involving students

Educator terminated for doing exactly what he was permitted and encouraged to do by his employer

Educator's unsatisfactory performance rating for the academic year supported by the "detailed descriptions" of educator's difficulties in the classroom in the record

Eligibility for workers’ compensation benefits based on work-related stress

Employee dismissed pursuant to §75 of the Civil Service Law for incompetency based on excessive absenteeism

Employee has the burden of proving alleged misconduct by the arbitrator prejudiced his or her rights or the integrity of the process

Employee may be subjected to disciplinary action for misusing his or her sick leave accruals

Employee on Workers’ Compensation Leave continues to be subject to his or her employer’s rules and regulations concerning policies applicable to all its employees

Employee penalized 60-day suspension without pay after striking a patient and failing to report the incident

Employee served with disciplinary charges alleging he was "singing on the job"

Employee suspended for one year without pay after failing to comply with school directives

Employee terminated following the loss of the license required to perform the duties of the position

Employee’s adjournment request may be properly counted against the employee for purposes of determining his or her entitlement to back pay

Employee’s continuing to accept public assistance benefits after being employed to manage public assistance benefits held incompatible with such employment

Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed

Employee’s misuse of employer’s email results in dismissal

Employee’s testimony at the hearing differed from statements he gave during an investigative raised a question of credibility for the hearing officer to resolve

Employee’s use of the employer's electronic equipment - disciplinary action being taken against an employee

Employee's resignation after being found guilty of disciplinary charges forfeits his or her right to demand arbitration

Employer advanced good faith reasons supporting its decision to terminate a probationary employee

Employer's payment of employer contributions towards an employee's health insurance premiums discontinued during the employee's disciplinary suspension without pay

Employer's personnel policies may be operative with respect to its employees' conduct while its employees are "off-duty"

Employer's termination of a biologically male employee transitioning from male to female held unlawful discrimination on the basis of sex

Employment history of an employee found guilty of one or more disciplinary charges may be considered in setting the disciplinary penalty to be imposed

Essentials of challenging an employee disciplinary action where compulsory arbitration is involved

Evaluating claims of mitigating circumstances in considering challenges to the disciplinary penalty imposed by the appointing authority

Evidence that the firefighter suffered disease or malfunction of the heart as the result of his or her duties and activities required to trigger the statutory presumption set out in the Volunteer Firefighters' Benefit Law

Exceptions to the Doctrine of Exhaustion of Administrative Remedies

Exceptions to the general rule that only the union or the employer may demand that an issue be submitted to arbitration

Factual findings made in a disciplinary hearing have a collateral estoppel effect where the individual had a full and fair opportunity to litigate the alleged misconduct at that hearing

Failing to designate the individual to conduct a disciplinary hearing pursuant to §75 of the Civil Service Law in writing is a fatal jurisdictional error

Failing to provide a fair hearing requires the voiding a Civil Service Commission’s decision sustaining the termination of an employee by the appointing authority

Failure of the individual to timely execute his or her oath of office upon election to a public office results in the position becoming vacant by operation of law

Failure to comply with emergency leave regulations

Failure to honor a known policy of the employer can constitute disqualifying misconduct for the purpose eligibility for unemployment insurance benefits

Federal and State laws, rules and regulations control affecting public sector officers and employees engage in partisan political activities

Fifth Amendment's bar against “self-incrimination” does not protect an individual who lies in the course of an official inquiry

Filing disciplinary charges against an employee where the absence is due to an injury or disease

Findings of fact in support of the appointing authority’s decision to terminate an employee required to survive the employee’s judicial challenge seeking reinstatement to his or her former position.

Findings of fact made by a §75 hearing officer are given collateral estoppel effect in considering a terminated individual's application for unemployment insurance benefits

Fire district or municipal corporation may file an application for disability retirement on behalf of a firefighter receiving General Municipal Law §207-a.1 benefits

Firefighter Rule bars police officer from suing his or her employer or a coworker for injuries suffered while on duty

Forfeiture of employee retirement contributions made to a New York State public retirement system

Freedom of speech

General Municipal Law §207-a(2) salary supplement becomes payable by the employer upon a firefighters retirement with accidental or line of duty disability benefits

Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious

Guidelines followed by courts in reviewing a challenge to a disciplinary decision made after a hearing held pursuant to compulsory arbitration

Hearing officer considers failed efforts at “progressive discipline” in setting disciplinary penalty

Hearing officer is entitled to weigh the parties' conflicting evidence and to assess the credibility of witnesses where room for choice exists

Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing

Hearsay testimony may be admitted in evidence in an administrative hearing

History of misconduct and other factors considered by the hearing officer in recommending termination of employment

If an employee engaged in repeated acts constituting disloyalty to the employer, forfeiture of compensation and benefits is warranted under the Faithless Servant Doctrine

If the collective bargaining agreement does not set out procedures for conducting GML §207-c hearings, the employer is free to establish such a procedure unilaterally

Implementing an arbitrator's decision after the appointing authority failed to timely comply with the provisions set out in a collective bargaining agreement

Imposing a "disciplinary probation period" as part of the penalty or settlement of a disciplinary action

Imposing a greater disciplinary penalty than the one recommended by the disciplinary hearing officer

Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer

Imposing multiple disciplinary penalties on an employee found guilty of misconduct

Inability to satisfactorily perform the duties of the position due to an alleged disability

Individual cannot be found guilt of misconduct not charged in the notice of discipline

Individual has no property interest in his or her former employment once he or she is discharged

Individual is disqualified from receiving unemployment insurance benefits if he or she lost his or her employment as a result of acts constituting a felony

Individual is not deemed permanently disabled if undergoing a reasonably safe surgical procedure would permit the individual to perform the duties of his or her position

Individual or organization must have “standing” in order to maintain an Article 78 action challenging an administrative decision

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 wishing to withdraw or rescind his or her resignation after delivery to the appointing authority must fully comply with all relevant rules and regulations

Individual's General Municipal Law §207-c benefits may be discontinued where the decision to do so is supported by substantial evidence

Individual's retiring from his or her position to avoid disciplinary action may have unexpected consequences

Individual's right to due process is truncated if he or she is persuaded not to attend his or her administrative hearing

Injuries sustained by a trainee during a training exercise ruled the result of an accident for the purposes of claiming eligibility for accidental disability retirement benefits

Installing Global Positioning System equipment in devices use by employees during work

Insubordinate and discourteous conduct

Judicial review of a determination arrived at following a quasi-judicial hearing is typically limited to determining if the decision is supported by substantial evidence

Judicial review of determinations made after a hearing denying a police officer's application for General Municipal Law §207-c disability benefits

Lack of prior misconduct not sufficient to mitigate imposing the penalty of dismissal given the fraudulent nature of the individual’s misconduct

Lack of standing and failure to name a necessary party dooms an appeal to the Commissioner of Education

Layoff of seasonal employees constituted a termination of employment for the purposes of Public Authorities Law §2629(2)(a)

Leaving employment without good cause will disqualify an applicant for unemployment insurance benefits

Maintaining a proper chain of custody of evidence to be used in a disciplinary action

Making false statements concerning the employee's performance of his or her duties

Making false statements to investigators concerning alleged misconduct

Member service credit in the New York State Teachers' Retirement System upon the reemployment of an individual receiving a disability retirement allowance by a New

York State public employer

Membership in the NYS Employees’ Retirement System for 10 years is not necessarily the same as the member having 10 years of member service credit

Minor gaps and errors in the hearing transcript made at an administrative hearing did not preclude meaningful review of the hearing

Motions to have an administrative law judge recuse himself or herself from presiding at a disciplinary hearing

Name clearing hearings

Negotiating disciplinary procedures for City ofSchenectady police officers held a prohibited subject of collective bargaining

New York City employee found guilty of used his employer's telephone and computer equipment for his political campaign while at work

New York City police officer who filed fabricated complaints with the New York City Civilian Complaint Review Board dismissed from the department

New York State and Local Retirement System member has only 30 days following the “date of payability” of his or her retirement allowance to change his or her retirement option

OATH Administrative Law Judge recommended dismissal of disciplinary charges after finding supervisors’ testimony was unsupported by reliable documentary evidence

OATH disciplinary hearing held in absentia

Obligation to arbitrate the matter arising through a statutory mandate set out in Education Law §3020-a requires that the arbitrator’s determination be subject to "closer judicial scrutiny."

Opening a disciplinary hearing to the public and other procedural matters addressed in an appeal to the Commissioner of Education

Optional Retirement Plan

Overtime paid to a police officer on “special-duty” for service performed for a private entity not included in determining the officer’s “final average salary” for retirement purposes

Party seeking to modify an arbitration award must comply with the relevant provisions of Article 75 of the Civil Practice Law and Rules

Penalty of dismissal imposed on educator ruled shocking to its sense of fairness

Penalty of dismissal recommended for an employee found guilty of violating the public trust and other disciplinary charges

Penalty of termination to “jolt” the employee to understand of the seriousness of his misconduct remanded for the imposition of a lesser penalty

Petitioner's appeal from a Board of Education's seniority determination for the purposes of layoff dismissed for failure to make "proper service" on all the parties

Placing an employee on involuntary leave pursuant to Civil Service Law §72.5

Plausibility Standard

Police confrontations with mentally impaired citizens and inmates

Police detective who did not properly discharge his duties not entitled to a defense or indemnification by the employer in a lawsuit in which he or she is a defendant

Police officer eligible to receive General Municipal Law §207-c benefits may file a claim against his or her employer pursuant to General Municipal Law §205-e

Police officer holds a position of great sensitivity and trust and is subject to a higher standard of fitness and character are "ordinary civil servants"

Police officer terminated following being found guilty of downloading and possessing child pornography

Police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

Police offices and firefighters applying for accidental disability retirement benefits must demonstrate that his or her incapacity was the "natural and proximate result of an accident" within the meaning of §363[a][1] of the Retirement and Social Security Law

Presumption that an accident that occurred in the course of employment arose out of that employment

Probationary employee has the burden of showing his or her termination was unlawful

Probationary employee may not be terminated in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law

Probationer challenging dismissal from the position claims to have suffered extreme emotional distress

Procedural errors to avoid in an appeal submitted to the Commissioner of Education

Procedural misstep in processing an appeal to the Commissioner of Education could result in a fatal jurisdictional defect

Procedural requirements with which a resident of a school district must comply when seeking to remove a school officer from his or her position

Processing an application for accidental disability retirement

Processing appeals to the Commissioner of Education seeking the removal of a member of a Board of Education

Proper service of the petition and notice of the petition of an appeal to the Commissioner of Education critical to the Commissioner assuming jurisdiction

Public employee's misconduct while "off-duty" may result in disciplinary action being initiated against the employee by his or her appointing authority

Public officer threatening to do something that he or she may lawfully due does not constitute coercion

Public policy prohibits an employer from bargaining away its right to remove employees meeting the plain and clear statutory requisites for termination

Public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination

Redacting the name of a party in an administrative disciplinary action from the decision

Refusing to accept the resignation submitted by an employee

Rejection of a hearing officer's finding of fact and determination by the appointing authority

Removing a judge from his or her office

Removing a school official for an alleged unauthorized disclosure of confidential information

Removing a town, village, improvement district or fire district officer, other than a justice of the peace, from his or her office

Removing a volunteer firefighter from his or her position

Requiring a firefighter injured in the line of duty to accept a "light duty" assignment and where appropriate to undergo surgery

Requiring an educator submit to a medical examination to determine his or her ability to perform the duties of his or her position

Requiring employees to submit to a “dog-sniffing test” for illegal drugs

Restoration of leave credits used by employees electing to remain on the payroll while on Workers’ Compensation Leave pursuant to Civil Service Law §71

Retirement

Right to a disciplinary hearing survives the individual’s resignation or retirement from the position

Right to administrative due process not compromised by a three-year delay in conducting a disciplinary hearing and, or, other alleged procedural errors

Rule of three

Running for public office

Salary reduction upon reassignment to another position in the course of an agency reorganization is not a disciplinary action requiring notice and hearing

School Board asks the Commissioner of Education to remove the president of the school board from the position

School board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty

School board seeks to remove a sitting member from the board for alleged "official misconduct"

School district’s decision to abolish a position and have a BOCES assume performing the duties of the abolished position constitutes a “transfer of a function” within the meaning of Civil Service Law §70(2)

School employee who elected to submit an issue for resolution through a contractual grievance procedure may not appeal the same issue to the Commissioner of Education pursuant to Education Law §310

Seniority for the purposes of layoff and reinstatement from a preferred list set out in "settlement agreement"

Sick leave

Sleeping on duty

Social Security Administration’s disability determination not binding on a public retirement system of this State.

Spoliation of evidence

Statutory rights of employees of the State and political subdivisions of the State absent from work as the result of a work-related injury or disease

Stipulation of settlement cannot withdrawn from the stipulation on the basis that it had "improvidently" agreed to it

Stipulation waiving rights to a disciplinary hearing and agreement to resign from the position may not disqualify the individual for Unemployment Insurance benefits

Summarily removing public officers and employees from their positions

Summarily terminating a federal officer holding a term appointment from his or her position

Supreme Court correctly applied the Doctrine of Collateral Estoppel based on the hearing officer's determinations as to the reasons for the employee's termination

Suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time

Suspension of a tenured teacher requires the timely filing of written charges and specifications with the clerk or secretary of the board of education

Teacher fined $10,000 after subjecting student to corporal punishment

Tenure area determinations upon the abolishment of a position or positions

Tenure by estoppel

Tenured employee who resigns from his or her position and is subsequently reemployed by his or her former employer in the same title is not automatically entitled to tenure in the position

Tenured teacher unwilling to improve her pedagogical skills despite being provided with substantial assistance terminated from her position

Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim

Terminated educator alleges that her employer breached the employment agreement and negligently terminated her

Terminated probationary employee has the burden of demonstrating an improper basis for his or her termination

Terminating a "long-time" provisional employee

Terminating a teacher during his or her probationary period

Termination of a police officer on General Municipal Law §207-c leave under color of Civil Service Law §71

Termination of a public officer from his or her position by operation of law

Termination of employee found guilty violating patient escort procedures, being late for work, falsifying timesheets, and failing to arrive on time for assignments

Termination of employment following extended absence without approval

Termination of the employee following unsuccessful progressive disciplinary efforts did not shock the court’s "sense of fairness”

Test applied to determine if an individual is eligible for accidental disability retirement is whether he or she is permanently unable to perform the full duties of the position

Unemployment Insurance Appeal Board may reject an application for unemployment insurance benefits based on its finding the Claimant's employment was terminated due to disqualifying misconduct

Unemployment insurance benefit denied where off-duty misconduct found to breach the standards of behavior expected of an employee in consideration of his or her duties

Union cannot object to imposing demotion as a disciplinary penalty when demotion was a penalty authorized in the collective bargaining agreement

Unless it is shown that a performance evaluation was arbitrary and capricious, or made in bad faith, the court will not substitute its judgment for that of the appointing authority

Unsatisfactory rating voided because employee's "performance review" failed to comply with the employer's own procedures and thus undermined the integrity of the process

Use of excessive and inappropriate force on juvenile residents at a facility

Use of video surveillance recording in disciplinary actions

Withdrawing a resignation delivered to an appointing authority

Zero tolerance drug policy

Releasing annual employee financial disclosure statements to the public

The petitioner [Plaintiff] in this CPLR Article 78 action challenged the Suffolk County Legislature action [Resolution] directing the Suffolk County Board of Ethics [Board] to provide the Plaintiff's financial disclosure statements to the Ways and Means Committee of the Suffolk County Legislature. Supreme Court denied Plaintiff's petition and dismissed the proceeding whereupon Plaintiff appealed the lower court's determination, contending that the County Legislature's Resolution was, inter alia, arbitrary and capricious, an abuse of discretion, and in excess of the County Legislature's authority.

Suffolk County, as authorized by General Municipal Law §811(1), had adopted a local law requiring certain county employees to file annual financial disclosure statements with the Board. The Board was required to review each financial disclosure statement filed with it and determine whether there had been compliance with the disclosure requirements.

The County Code provided that an employee, at the time a financial statement was filed, could request that the Board withhold information from public disclosure on the ground that such disclosure would constitute an unwarranted invasion of privacy or a risk to an individual's safety or security.* Further, when the Board produces a financial statement for public inspection, it was required to notify the employee of the production and of the name of the person to whom it was provided.  

A newspaper published in Suffolk County submitted a request to the Board for release of the Plaintiff's financial disclosure statements. The request was denied by the Board and the newspaper did not challenge the Board's determination. Subsequently the County Legislature, citing sections of the New York Freedom of Information Law and the United States Code, adopted the Resolution directing the Board to provide the Plaintiff's financial disclosure statements for the period "2000 to the present" to the Ways and Means Committee of the County Legislature based the Board's denial of the newspaper's request for the petitioner's financial disclosure statements.**

Ultimately Supreme Court stayed the public release of the Plaintiff's financial disclosure statements and required that the statements be submitted to the court, in camera. The County Legislature submitted "a memorandum of law, an amended memorandum of law, and an affirmation of counsel to the County Legislature"  asserting that "members of the County Legislature have stated that the Board's determination was inconsistent with the intent and understanding of the [County] Legislature in enacting the financial disclosure statute."*** 

The Supreme Court reviewed the submitted financial disclosure statements and "redacted confidential information to protect the Plaintiff and his family." The court also directed the Board to produce redacted copies of the financial disclosure statements to the Ways and Means Committee of the County Legislature. The Board complied with the court's directive and the Plaintiff appealed the court's ruling to the Appellate Division.

Citing Marbury v Madison , 1 Cranch [5 US] 137, the Appellate Division explained that a legislative body may not usurp a court's power to interpret and apply the law to the particular circumstances before it and it is beyond the authority of the County Legislature to determine that the Board's decision to withhold the Plaintiff's financial disclosure statements from public inspection was incorrect and "to take it upon itself to obtain the statements and provide for their public release." In the words of the court, "the County Legislature wrongly placed itself in the position of a reviewing court", opining that this action "is particularly disturbing where the purportedly aggrieved newspaper took no steps to vindicate its rights to disclosure of the financial statements by the Ethics Board."

Noting that the County Legislature entrusted to the Board the responsibility for receiving and resolving requests for access to financial disclosure statements filed with the Board, the Appellate Division indicated that the "proper remedy for seeking review of a Board determination denying public access to a governmental record is to seek judicial review, not for the County Legislature to arrogate to itself a judicial function reserved for the courts and the courts alone."

The Appellate Division also disagreed with Supreme Court's determination to redact "confidential information to protect the [Plaintiff] and his family" not withstanding its holding that Plaintiff's financial disclosure statements were subject to public disclosure.  The court observed that while the Board is required to redact information pertaining to categories of value from all financial disclosure statements made available for public inspection, Supreme Court cited no authority for its decision to make further redactions.

The County Legislature also contended that the resolution could be sustained as a valid exercise of its oversight authority. However, said the Appellate Division, the record before it did not reflect that either the County Legislature or its Ways and Means Committee was conducting any oversight of the Board. Rather, noted the court, "it is undisputed on the record" before it that the resolution was adopted "for the purpose of circumventing the Ethics Board's determination to deny public release of the petitioner's financial disclosure statements."

The Appellate Division thought it significant that that the County Legislature determined, without examining the Board's determination, that the Board was wrong and took it upon itself to reverse this specific determination through the enactment of the resolution. Neither federal, state, nor county law countenance such a procedure. Thus, ruled the court, Plaintiff's petition must be granted, and the Resolution adopted by the County Legislature annulled.

* Even if no request to withhold information from public inspection is made by an employee, the County Code provides that categories of value are confidential and that such information is to be redacted by the Board before a financial disclosure statement is made available for public inspection.

** The Resolution also stated that the County Code "says that financial disclosure statements are available for public inspection and there appear[ ] to be no exceptions in the law that justify withholding a financial disclosure statement from public inspection" and that "in enacting the financial disclosure law, it was the intent of this Legislature that financial disclosure statements be available to the public."

*** The Board, although named as a respondent, did not appear before the court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05779.htm

Determining the date on which the four month statute of limitations for filing a timely CPLR Article 78 action begins to run

The Court of Appeals has defined "final and binding" in terms of completeness and exhaustion of administrative remedies as follows: "[f]irst, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party."*

Petitioner [Plaintiff] commenced this CPLR Article 78 proceeding seeking to compel the New York State Department of Education [DOE] to issue a school building leader certificate for which he had applied in 2014. DOE, contending that Plaintiff had not paid a necessary fee before the applicable deadline, had declined to issue the certificate and issued a notice of uncompleted requirements for certification on July 23, 2014. Plaintiff was also advised that he would be required to meet newly-enacted examination requirements.

In June 2016 inquiry Plaintiff contacted DOE concerning the status of his application. DOE responded, citing its July 2014 notice of uncompleted requirements. Ultimately DOE, in response to Plaintiff additional inquiry and request for "an official appeal," sent Plaintiff two documents dated December 9, 2016 entitled "Notice of Uncompleted Requirements for Certification" explaining that Plaintiff's application had been disapproved and restated that there was "no legal means by which [DOE could] overlook" the initial missed deadline for the required payment.** Plaintiff was also advised that should he wish "to further pursue the certification, he would need to reapply and meet all additional requirements."

DOE moved to dismiss Plaintiff's petition as untimely because the proceeding was commenced on April 28, 2017, more than four months after DOE's issued its December 9, 2016 determination. In rebuttal, Plaintiff contended that the statute of limitations began to run when he received the second, identical, notice dated January 3, 2017. Supreme Court granted DOE's motion to dismiss the petition, and Plaintiff appealed.

The Appellate Division sustained the Supreme Court's ruling, explaining that the definitive position stated in DOE's January 2017 notice is no different from that DOE expressed in its initial December 2016 notice. Further, said the court Plaintiff "does not argue that he was attempting to pursue further administrative remedies or took any additional action after the December 2016 notice was issued."

Accordingly, the Appellate Division ruled that Supreme Court's dismissal of Plaintiff's petition as untimely was correct, noting that DOE's determination became final and binding and the statute of limitations period began to run on December 9, 2016. Further, said the court, although there is a potential for prejudice in a case where a petitioner receives a subsequent, additional notice and then provides that postdated determination to his or her attorney, in this instance the Appellate Division opined "that no such prejudice has been alleged, nor was any justification for petitioner's failure to commence a proceeding based upon the December 2016 notice provided."

* See Walton v New York State Dept. of Correctional Servs., 8 NY3d 186, quoting Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30.

** The Appellate Division's decision notes that "for reasons still unknown and unexplained within the record or briefs," DOE issued the second identical notice dated January 3, 2017.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05610.htm

By failing to seek a stay of arbitration a party to the arbitration runs the risk of the arbitrator finding that the subject matter of the dispute is covered under the controlling collective bargaining agreement

A City School District [District] appealed a Supreme Court's decision that granted the Employee Organization's [Union] petition to confirm an arbitration award and denied District's cross petition to vacate that award.

A member of the Union was terminated by the District because she did not possess a valid registration card required by General Business Law §89-g(1)(a) for employment as a security guard. The Union filed a grievance on behalf of its  member and ultimately filed a demand for arbitration.

The District did not move to stay arbitration and the arbitrator subsequently issued an award that directed the District to rescind the termination of the Union's member and reimburse the member for her loss of pay from the date her registration card as a security guard was renewed. The District then appealed the Supreme Court ruling.

The Appellate Division rejected the District's contention that the arbitration award violated public policy requiring the registration of security guards.  Citing Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, the court said that "[T]he public policy exception to an arbitrator's power to resolve disputes is extremely narrow" and the Court of Appeals has promulgated "a two-prong test for determining whether an arbitration award violates public policy."

The first test: a court, "without engaging in any extended fact-finding or legal analysis that a law prohibits, in an absolute sense, the particular matters to be decided ... by arbitration ...," determines that an arbitrator cannot act. If the arbitration award survives this first test, the court is then to determine if the "award itself violates a well-defined constitutional, statutory or common law of this State."

In contrast, the Appellate Division opined that a court "may not vacate an award on public policy grounds when vague or attenuated considerations of a general public policy are at stake. Courts shed their cloak of noninterference [, however,] ... where the final result creates an explicit conflict with other laws and their attendant policy concerns, focusing on the result, the award itself."*

The Appellate Division concluded that the first prong of the public policy exception has not been met here because nothing in General Business Law §89-g prohibits the resolution of this matter by arbitration, particularly considering an arbitrator's " broad power to fashion appropriate relief'.

As to the second prong of the test, the court said that it had not been met either as the arbitration award did not compel the District to employ the union member as a security officer during the period that she did not have the required registration card. Indeed, opined the Appellate Division, the arbitrator ordered that the union member's termination be rescinded and that she be awarded back pay only from the time when she received her renewed registration card.

Also rejected by the court was the District's argument that the arbitrator exceeded his authority by finding that the collective bargaining agreement (CBA) allowed arbitration of this dispute. While couched in terms of the arbitrator exceeding his authority, the Appellate Division held that "in reality [the District] is contending that 'the arbitrator did not have the power to decide the question at issue and, therefore, there was nothing to arbitrate.'"

However, said the court, by submitting to arbitration, the District ran the risk that the arbitrator would find the dispute covered under the CBA, as he did, notwithstanding District's position that the termination of an employee for failing to maintain a required registration card was outside the agreement's scope.

Concluding that the other arguments advanced by the District were "without merit," the Appellate Division sustained the Supreme Court's decision in this matter.

* In support of this observation, the Appellate Division cited Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05451.htm

New York State Governor Andrew M. Cuomo signed bill limiting educational institutions' power to authorize the possession of a weapon on school grounds

Stating that "The answer to the gun violence epidemic plaguing this country has never been and never will be more guns, and today we're expanding New York's nation-leading gun safety laws to further protect our children," Governor Andrew M. Cuomo has signed legislation limiting an educational institution's ability to authorize any person who is not primarily employed as a school resource officer, law enforcement officer or security guard to carry a firearm on school grounds.

The bill amends §265.01-a of the New York State Penal  Law to read as follows [text in italics is new.]: 

§265.01-a[.] Criminal possession of a weapon on school grounds.

A person is guilty of criminal possession of a weapon on school  grounds when he or she knowingly has in his or her possession a rifle, shotgun, or firearm in or upon a building or grounds, used for educational purposes, of any school, college, or university, except the  forestry lands, wherever located, owned and maintained by the State  University of New York college of environmental science and forestry, or  upon a school bus as defined in section one hundred forty-two of the  vehicle and traffic law, without the written authorization of such  educational institution; provided, however no school, as defined in subdivision ten of section eleven hundred twenty-five of the education law, shall issue such written authorization to any teacher, school administrator, or other person employed at the school who is not primarily employed as a school resource officer, police officer, peace officer, or security guard who has been issued a special armed guard registration card as defined in section eighty-nine-f of the general business law, regardless of whether the person is employed directly by such school or by a third party.

Criminal possession of a weapon on school grounds is a class E felony.