Criteria for promotion are a managerial prerogative and thus not a mandatory subject of collective bargaining

The New York City Correction Officers' Benevolent Association [Petitioner] filed an  Article 78 petition to challenge a determination by New York City Board of Collective Bargaining [BCB] which concluded that New York City Department of Corrections [DOC] and the City of New York [City] did not commit an improper practice under the City Collective Bargaining Law [CBL] when it altered the procedures pursuant to which correction officers represented by Petitioner secure promotions to the title of correction captain.

Petitioner had filed an improper practice petition with BCB alleging that the City and DOC violated New York City when DOC issued Directive 2230, entitled "Pre-Promotional Assignment Procedures" in accordance with a consent order approved by a federal district court in a case involving allegations of excessive use of force incidents in DOC facilities.*

The relevant provision in Directive 2230 concerns promotions within DOC provided for (1) a review of a correction officer's use of force and disciplinary history during the five years prior to the consideration for promotion; (2) a prohibition of the promotion of candidates who were found guilty or plead guilty on two or more occasions to five categories of discipline for excessive use of force during the prior five year period; and (3) a prohibition of a promotion from correction officer to captain while disciplinary charges related to use of force incidents are pending.

Board of Education, City School District of City of NY. v New York State Public Employment Relations Board, 75 NY2d 660, Supreme Court observed that "[i]n cases involving the issue of mandatory or prohibited bargaining subjects under the Civil Service Law, we have defined our review power as a limited one: [s]o long as [the agency's] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation." Further, opined Supreme Court, "New York courts have deferred to BCB's expertise in applying and interpreting the provisions of the CBL," citing New York City Dept. of Sanitation v MacDonald, 87 NY2d 650.

BCB had found that Directive 2230 does not constitute a unilateral change to a term of condition of employment, thus DOC did not make a unilateral change to a mandatory subject of collective bargaining, noting that in prior cases BCB had held that criteria for promotion are a managerial prerogative and not a mandatory subject of collective bargaining. Here, said the court, BCB concluded "that the contested changes in promotions set forth in Directive 2230 concern criteria for 'promotion"

Noting that BCB had found that DOC "exercised its managerial prerogative" when it took into consideration DOC took into consideration use of force incidents when considering  promotion to captain a correction officer's use of force incidents, finding that these elements "most akin to promotional considerations like aptitude, demeanor, and judgment, or to awarding greater points for those candidates with a less extensive disciplinary history."

Supreme Court held that these conclusions by BCB were rational and consistent with its  decisions in other cases and thus were "legally permissible" and there was "no breach of constitutional rights [or] protections" in its determination.  Accordingly, said Supreme Court, it had "no power to substitute another interpretation" in considering the arguments advanced by Petitioner.

Addressing Petitioner arguments that the Directive 2230 criteria regarding whether a corrections officer should be recommended for promotion to captain is analogous to imposing mandatory penalties for disciplinary violations, a mandatory subject of collective bargaining, Supreme Court opined that "New York courts, like BCB in the instant proceeding, have held that discipline is not the same as failure to promote."

The court then granted the motions advanced by BCB, the City and DOC to dismiss the Petitioner's Article 78 action.

* See Nunez v City of New York, 11 Civ 5845 (SDNY 2015),

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/pdfs/2019/2019_32628.pdf

Rescinding or withdrawing a letter of resignation

The employee [Plaintiff] in this action was a civilian employee of a police department [Department]. A detainee had died in her holding cell at police headquarters while the Plaintiff was on duty. The New York State's Attorney General's Office investigated the death of the detainee and recommended "administrative action regarding the Plaintiff's conduct" be initiated by the Department.

The then Department's appointing authority "authorized" the Plaintiff's supervisor "to resolve the disciplinary issue by accepting a letter of resignation" from the Plaintiff. The supervisor told Plaintiff that if he did not resign from his position a formal disciplinary proceeding would be commenced against him. Plaintiff tendered his resignation letter immediately after his meeting with his supervisor.

The next day, however, Plaintiff sent a letter to his supervisor rescinding his resignation. About two weeks later the Department notified the Plaintiff' that it had rejected his effort to rescind his resignation. Plaintiff then commenced a CPLR Article 78 proceeding seeking a court order [1] vacating the Department's decision, [2] directing the Department to reinstate him to his former position and [3] to pay Plaintiff "damages and back pay. The Supreme Court granted Plaintiff's petition and the Department appealed.

With respect to resigning from a position in the classified service, the Appellate Division, citing 4 NYCRR 5.3(b), said that such resignations are to be delivered to, or filed in the office of, the appointing authority* and that 4 NYCRR 5.3(c) provides that "a resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority without the consent of the appointing authority."

However, the court noted that the Department's appointing authority was not authorized to delegate his authority to receive the delivery of an employee's written resignation to another individual.

Although the heads of other departments in the jurisdiction were specifically authorized to delegate the power to receive the delivery of an employee's resignation to a designated individual, the powers and duties of the Department's appointing authority "did not specifically provide for any such delegation of the [appointing authority's] power to a subordinate." Accordingly, the Appellate Division held that Plaintiff's supervisor "was without authority to receive delivery of [Plaintiff's] resignation letter" on behalf of the Department's appointing authority.

As there was no indication in the record that Plaintiff's letter of resignation was delivered to the appointing authority or filed by or on behalf of the Plaintiff with the appointing authority's office prior to the Plaintiff's request to rescind it, "such that the [appointing authority's] consent to [its withdrawal] was necessary," the Plaintiff was not preclude from "unilaterally rescinding his resignation."

It should be noted that  the Plaintiff  was informed that if he did not submit his resignation to his supervisor a formal disciplinary proceeding against him would be initiated. Does such a demand constitutes “duress or threat” that will defeat the “voluntariness” of the resignation and make it meaningless? Case law indicates that in the absence of extenuating circumstances such as an excessively lengthy or intense questioning, courts will not deem the individual's resignation to have been obtained under duress.

In Rychlick v Coughlin, 63 NY2d 643, the Court of Appeal addressed a situation where an employee was offered the option of resigning from his position or having formal disciplinary charges filed against him. Although permitted to confer with a union official, when the employee asked for additional time to consult with an attorney, he was told that unless he submitted his written at that very moment, disciplinary charges would be filed against him. He submitted his resignation but four days later attempted to withdraw or rescind his resignation, which he contended had been “forced” from him.

Ultimately the Court of Appeals held that a threat to file formal disciplinary  charges against an employee if he declined to submit his resignation "does not constitute duress," explaining that as the appointing authority had the legal right, if not the duty, to file disciplinary charges against the individual, threatening to do what the appointing authority had the legal right to do is not duress.

In contrast to an individual's efforts to withdraw his or her resignation, an appointing authority may elect to ignore a lawfully delivered resignation.

4 NYCRR 5.3(b), which as noted earlier applies to State employees in the classified service, provides that in the event “… 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". Many civil service commissions of political subdivisions of the State have adopted a similar provision.

* 4 NYCRR 1.1 et seq. applies to incumbents of positions in the classified service of the State as the employer and to public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the New York State Department of Civil Service. Here the "local civil service commission" had adopted personnel rules similar to those set out in 4 NYCRR 1.1 et seq. which applied to all positions in the classified service of the county and all civil divisions "which are or may hereafter be under the jurisdiction" of the local commission.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06601.htm

New York's Adirondack Council's 2019-20 State of the Park report posted on the Internet

Subtitled Challenged by Success, New York's Adirondack Council's 2019-20 State of the Park report is posted on the Internet at https://www.adirondackcouncil.org/vs-uploads/sop_archive/1567097203_SOP_2019_2.pdf

Employee terminated for mishandling cash transactions

A City School District School Board [School Board] charged its cashier [Petitioner] with misconduct based on allegations that she failed to record various purchases of milk and juice by students as well as purchases of food by adults. In addition, she was charged with failing to account for "pre-identified bills."

Testimony was provided by Petitioner's co-workers, who had been instructed to observe her handling of "cash transactions" for a period of time by their supervisor. The Appellate Division said that this testimony, together with certain documentary evidence in the record of the disciplinary hearing, "provided the necessary substantial evidence to support the hearing officer's finding of misconduct and incompetency" and the adoption of  those findings by the School Board.

The Appellate Division also ruled that dismissal was not disproportionate to the offenses committed, citing the Pell standard. The Court said that "having violated her position as an employee entrusted with School District money, termination in all respects was proper."

An employee may claim that his or her theft of money from an employer was the result of a disability. If, indeed, the misconduct can be attributed to a disability in some degree, must the appointing authority refrain from disciplining the individual?

No, according to the Equal Employment Opportunity Commission, which opined that "an employer may discipline an employee with a disability for engaging in misconduct if it would take the same disciplinary action against an employee without a disability.*

Further, 8 FEP Manual 40-5.7259 indicates that "an employer does not have to excuse ... misconduct, even if the misconduct results from an impairment that rises to the level of a disability if it does not excuse similar misconduct from its other employees."

* See EEOC 915.002.

The decision is posted on the Internet at:

https://www.leagle.com/decision/19971076238ad2d8381281

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A Reasonable Disciplinary Penalty Under the Circumstances

Employer's personnel policy manual setting out reasons why an employee could be subject to dismissal does not constitute a "written contract" of employment

The Board of Trustees of the Library System [System] dismissed an employee [Plaintiff] from her position with the System. Plaintiff sued, contending that her termination constituted a breach in her contract of employment.

A New York State Supreme Court judge found that Plaintiff was an employee at will and dismissed her complaint. When Plaintiff appealed, the Appellate Division sustained the lower court's ruling, explaining that Plaintiff did not demonstrate that she had a written contract of employment with the System, much less that it had been breached.

While the Library System's "Personnel Policy and Procedure Manual set out a number of reasons why an employee could be terminated such as "unfitness, incompetence, and mental or physical disability, the Appellate Division concluded that this was not a "written contract of employment." Accordingly, the setting out of such reasons for termination in the policy manual "did not limit ... [the System's] right to discharge an employee at will to just and sufficient cause only."

The decision also notes that absent an agreement establishing employment for a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party.

Finding that Plaintiff was an employee at will and thus she could be terminated at any time, for any reason, except an unlawful reason, or for no reason whatsoever, the Appellate Division said Plaintiff's "complaint sounding in breach of contract and detrimental reliance was properly dismissed" by Supreme Court.

In contrast, as the Court of Appeals held in Antinore v State, 40 NY2d 6, where an individual is within the ambit of a statutory disciplinary procedure such as Civil Service Law §75 or §3020-a of the Education Law, or a contract disciplinary grievance procedure set out in a collective bargaining agreement, the employee is entitled to administrative due process.

In Antinore the Court explained that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure so long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutory procedure that it replaced.

The decision is posted on the Internet at:

https://www.leagle.com/decision/1997611239ad2d3722272