Emergency rule making adopted by the State Comptroller addressing processing applications for retirement benefits during the COVID-19 state of emergency

On March 7, 2020 the Governor of New York State declared a state of emergency due to the COVID-19 virus. An emergency adoption of this rule is necessary for the preservation of the general welfare of the members, retirees and beneficiaries of NYSLRS. In order to maintain operation of the retirement system during this state of emergency, it is necessary to authorize the suspension of certain administrative and operational requirements related to the retirement system including, but not limited to, the processing and determination of applications for any form of retirement or benefit, and the conduct and scheduling of administrative hearings. 

Text of emergency rule: 

Add a new Part 383. Section 383.1 Addition or suspension of certain administrative and operational requirements during the COVID-19 state of emergency. 

On March 7, 2020 the Governor of New York State declared a state of emergency due to the COVID-19 virus. An immediate adoption of this rule is necessary for the preservation of the general welfare of the members, retirees and beneficiaries of NYSLRS. Effective immediately and notwithstanding any other law, rule or regulation to the contrary, the Comptroller may authorize the suspension of certain administrative and operational requirements related to the retirement system including, but not limited to, the processing and determination of applications for any form of retirement or benefit, participating employer reporting and the conduct and scheduling of administrative hearings. Such change in administrative and operational requirements will be effective for 90 days from the date of filing of this rule unless such emergency rule is readopted or rescinded prior to the expiration of such ninety day period. This notice is intended to serve only as an emergency adoption, to be valid for 90 days or less. 

N.B. This rule expires June 17, 2020. 

Text of rule and any required statements and analyses may be obtained from: Jamie Elacqua, Office of the State Comptroller, 110 State Street, Albany, NY 122236, (518) 473-4146, email: jelacqua@osc.ny.gov

An administrative decision made in the course of the exercise of discretion is not subject to judicial review

An employee [Petitioner] asked the New York City Administration for Children's Services [ACS] to approve his use of “advanced and extended sick leave” so that he could remain on the payroll during his absence from work. His request was denied and Petitioner initiated a CPLR Article 78 action seeking a court order in the nature of mandamus* requiring ACS to approve his request for such leave.

Supreme Court determined that Petitioner “was barred from compelling ACS to grant his leave request” by means of prosecuting an Article 78 action. The controlling regulations, opined the court,  governing the approval of such types of leave provided that the approval of an employee’s application was at the discretion of the appointing authority. Citing New York Civ. Liberties Union v State of New York, 4 NY3d 175, the court explained that  "mandamus does not lie to enforce the performance of a duty that is discretionary, as opposed to ministerial." Petitioner appealed the Supreme Court’s ruling.

The Appellate Division unanimously sustained the lower court’s decision, noting that ACS's decision was not subject to Article 78 review and Petitioner’s Article 78 action was properly dismissed.

* Latin for "We command." The writ of mandamus is an order from a superior body to an inferior body ordering the inferior body [or an individual] to perform, or refrain from performing, a particular act.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01443.htm

Attempting to withdraw a resignation after filing it with the appropriate individual or body

A Town Attorney [Attorney] sent a letter to the Town Supervisor  "giving notice" that the TA intended to resign from his position "as soon as [his] successor has been identified, and the Town Board is ready to appoint him or her." The Town Supervisor had Attorney's letter  delivered to the Town Clerk, whereupon the Town Clerk "stamped and filed it in the regular course of business." 

Notwithstanding Attorney's letters addressed to the Town Supervisor and the Deputy Town Supervisor "rescinding" his resignation, the Town Board hired a replacement town attorney. 

Attorney initiated an Article 78 action, contending that his resignation was ineffective and thus he had been "improperly terminated from his position as town attorney." The Supreme Court granted the Town's motion to dismiss Attorney's petition, finding [1] that Attorney's resignation was effective and [2] that Attorney never sought the consent of the Town Clerk to withdraw or cancel his resignation, an administrative procedure set out in Public Officers Law §31.4 that was available to him.*

The Appellate Division affirmed the Supreme Court's rulings, explaining that although Attorney's written resignation had been presented to the Town Supervisor instead of the Town Clerk as required by Public Officers Law §31(1)(g) and (2), opining that the relevant provisions of Public Officers Law §31 had been "substantially complied with when the resignation letter was delivered by the Town Supervisor's legislative aide to the Town Clerk, who then filed it in the regular course of business."**

Further, said the Appellate Division, Attorney "never sought the consent of the Town Clerk to withdraw or cancel the resignation," agreeing with the Supreme Court's decision to dismiss the proceeding based on Attorney's failure to exhaust his administrative remedies.

* Subdivision 4 of Public Officers Law §31 provides as follows: "A resignation delivered or filed pursuant to this section, whether effective immediately or at a specified future date, may not be withdrawn, cancelled, or amended except by consent of the officer to whom it is delivered or body with which it is filed." Similarly, 4 NYCRR 5.3(c), which applies to employees of the State as the employer and employees of entities for which the Civil Service Law is administered by the NYS Department of Civil Service, 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." 

** See Hazelton v Connelly, 25 NYS2d 74. In contrast, the courts typically rule that the receipt of a withdrawal of a resignation by the appropriate individual or body before the resignation itself is delivered to that entity effectively voids the resignation [see Grogan v Holland Patent CSD, 262 AD2d 1009].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_01175.htm

Educator disciplined for violating school policy

The arbitrator's decision has a rational basis and is supported by the evidence (see Lackow v Department of Educ. [or "Board"] of City of N.Y., 51 AD3d 563, 567-568 [1st Dept 2008]). The record shows that the arbitrator reasonably determined that petitioner was guilty of misconduct when he locked a 10-year old student out of the classroom and left him unsupervised in the hallway. Even if petitioner was justified in removing the student from the classroom, his actions in locking the boy out of the room, in a state of distress, and leaving him in the hallway without adequate supervision violated school policy (see Matter of Asch v New York City Bd./Dept. of Educ., 104 AD3d 415, 419-420 [1st Dept 2013]).

The penalty of a 15-day suspension from employment does not shock our sense of fairness (see Matter of Ghastin v New York City Dept. of Educ., 169 AD3d 507, 508 [1st Dept 2019]).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00976.htm

Determining if a dispute between the parties is arbitrable

In this hybrid Article 75 proceeding the Board of Education [Board] sought a court order pursuant to CPLR Article 75 permanently staying an arbitration and for declaratory relief. Supreme Court denied the petition and granted the motion of the Federation of Teachers [Federation] to compel arbitration. The Appellate Division affirmed the Supreme Court's ruling.

Federation had filed a grievance alleging that the Board a term and condition of the collective bargaining agreement [CBA] between the parties by failing to enforce a parking space assignment agreement between the Federation and the Civil Service Employees Association.

The Appellate Division, citing Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 153 AD3d 617, said that "Public policy in New York favors arbitral resolution of public sector labor disputes"  but that a dispute between a public sector employer and a public sector employee organization is only arbitrable if it satisfies a two-prong test.

The first prong of this two-point test to be satisfied is the absence of any statutory, constitutional, or public policy prohibition against arbitrating the grievance.

If the court finds that there is no such prohibition against the arbitration, it must determine if the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

In this instance the Board did not contend that arbitrating the Federation's grievance was barred by law or public policy. Accordingly, the issue to be addressed by the Appellate Division was the Board and Federation did, in fact, agree to arbitrate the particular dispute. To resolve this question the court must determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.

Recalling that in analogous cases "this Court had held that the arbitration provision of the CBA at issue here is broad,"* Moreover, the Appellate Division concluded that there was "a reasonable relationship between the subject matter of the dispute, staff parking, and the general subject matter of the CBA, including conditions of employment" and affirmed the decision of the Supreme Court.

* See Board of Educ., Yonkers City School Dist. v Yonkers Fedn. of Teachers, 110 AD2d 897, 898-899; Matter of Board of Educ. of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 81 AD2d 585; and Matter of Board of Education of Yonkers City School Dist. v Yonkers Fedn. of Teachers, 49 AD2d 753.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2020/2020_01343.htm