Penalty imposed following a disciplinary arbitration challenged

The petitioner [Teacher] in this action brought pursuant to CPLR Article 75 challenged the penalty imposed by the arbitrator - termination - following a disciplinary hearing. Supreme Court vacated the penalty portion of the disciplinary arbitration award and remanded the matter to the Board of Education [Board] for the imposition of a lesser penalty. The Board appealed the court's order.

The Appellate Division unanimously reversed the Supreme Court's ruling, on the law, reinstated the penalty imposed by the arbitrator and dismissed the Article 75 proceeding.

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, and other decisions, the Appellate Division opined that it did not find the penalty of termination of Teacher's employment shocking to one's sense of fairness "given the evidence of [Teacher's] pedagogical shortcomings, documented by supervisors and a peer evaluator, and his lack of improvement during two school years."

In particular, the court noted Matter of Russo v New York City Dept. of Educ., 25 NY3d 946, cert. denied 577 US 957, in which the termination of an Educator was sustained after three years of unsatisfactory performance ratings "notwithstanding [the educator's] 18 years of satisfactory teaching."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06349.htm.

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Judicial review of arbitration awards is extremely limited

A detective [Plaintiff] applied for General Municipal Law §207-c line of duty disability  benefits. The Employer's claims manager denied Plaintiff's application as untimely. Ultimately the Plaintiff's Union [PBA] demanded that the matter be submitted to arbitration pursuant to the relevant provision set out in the controlling collective bargaining agreement [CBA] between the Employer and the PBA 

The arbitrator interpreted the disputed provisions of the CBA and found that the claims manager's denial of the application as untimely was not reasonable.

Employer then filed a CPLR Article 75 petition seeking a Supreme Court order vacating the arbitration award. PBA then cross-petitioned the court to confirm the award. The Supreme Court denied the Employer's petition and granted the PBA's cross petition. The Employer appealed the court's ruling.

Citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471and other decisions, the Appellate Division observed that "A court may vacate an arbitration award on the ground that the arbitrator exceeded his [or her] powers within the meaning of CPLR 7511(b)(1)(iii) only where the arbitrator's award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The court then explained that for the purposes of Article 75 an arbitrator "exceeds his or her powers ... if the award gives a completely irrational construction to the provisions in dispute and, in effect, makes a new contract for the parties."

The Appellate Division then opined that, contrary to the City's contention, "the arbitrator's interpretation of the CBA was not irrational, and did not effectively rewrite the agreement." Further, said the court, "the arbitrator did not exceed a specifically enumerated limitation on his authority by construing the CBA's terms in light of testimony as to the past practices of the [Employer] and the [PBA].

Agreeing with the Supreme Court's determination denying the Employer's petition to vacate the arbitration award and granting the PBA's cross petition to confirm the arbitration award, the Appellate Division affirmed the lower court's ruling and awarded the PBA "one bill of costs."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06254.htm

 

AELE case notes, publications, and seminars alert for November 2020

Gender Discrimination in Correctional Policies. New November AELE Law Journal article, https://www.aele.org/law/2020all11/2020-11MLJ301.pdf

Jail & Prisoner Legal Issues Seminar---Attend Live or Virtually On Demand.  A 3.5-day updated seminar on "Jail & Prisoner Legal Issues." A first: You can attend the seminar live or virtually on demand! The seminar will become available on Monday, January 25, 2021 and will remain open for 60 days. Another first is online registration and payment.  https://aele.org/jail-law-seminar.html 

November Law Enforcement Liability Reporter: This issue has cases on assault and battery: handcuffs, dogs, false arrest/imprisonment: warrant, false arrest/imprisonment: unlawful detention, firearms related: intentional use, malicious prosecution, and public protection: hostages. http://www.aele.org/law/2020all11/LR2020NOV.pdf

November Fire, Police & Corrections Personnel Reporter:This issue has cases on arbitration procedures, collective bargaining: in general, disciplinary punishment, First Amendment, F.L.S.A.: administrative & executive exemption, handicap/abilities discrimination: reasonable accommodation, pay disputes, retaliatory personnel actions, workers’ compensation.  http://www.aele.org/law/2020all11/FP2020NOV.pdf

November Jail and Prisoner Law Bulletin: This issue has cases on COVID-19, First Amendment, medical care, Prison Litigation Reform Act: exhaustion of remedies, prison and jail conditions: radon, prisoner discipline, prisoner suicide, religion, sex discrimination, and sexual assault. http://www.aele.org/law/2020all11/JB2020NOV.pdf

 

AELE also offers more than 36,000 case summaries, divided into 700+ topics:

1. Law enforcement civil liability at http://www.aele.org/law/Digests/civilmenu.html

2. Employment law and discipline at http://www.aele.org/law/Digests/emplmenu.html

3. Jail and prisoner legal issues at http://www.aele.org/law/Digests/jailmenu.html

4. Electronic control weapons at http://www.aele.org/law/Digests/ECWcases.html

New York State's Productivity Enhancement Program for certain State officers and employees in the Executive Branch of government

New York State's Productivity Enhancement Program (PEP) allows eligible officers and employees of the State of New York as the employer represented by the Civil Service Employees Association, representedby District Council 37 and Managerial/Confidential employees in the Executive branch of State government to exchange previously accrued annual leave (vacation) and, or, personal leave for a credit to be applied to their employee contribution for NYSHIP health insurance premiums on a biweekly basis. The PEP program for 2021 is set out in the "Program Description" posted on the Internet at  https://www.cs.ny.gov/attendance_leave/pb20-06.pdf.

The enrollment period for 2021runs from Monday, November 2, 2020 through Monday, November 30, 2020.

 

Application for accidental disability retirement benefits rejected on finding that the alleged disability was not suffered in the performance of the applicant's duties.

Plaintiff in CPLR Article 78 action appealed Supreme Court's dismissal of her petition seeking to have the court annul the New York City Employees' Retirement System's [NYCERS] determination denying Plaintiff's application for accidental disability retirement [ADR]. Plaintiff appealed.

Citing Borenstein v New York City Employees' Retirement System, 88 NY2d 756, the Appellate Division sustained Supreme Court's ruling, concluding that the denial of Plaintiff's application for ADR was "not arbitrary and capricious, but [was] based on credible evidence in the record."

The court noted NYCERS' findings that:

[1] Plaintiff was neither physically nor mentally incapacitated based on her medical and mental health records, an independent psychiatric examination, and her interview before NYCERS' Medical Board;

[2] There was no contemporaneous evidence showing the circumstances of a physical assault on Plaintiff by her coworker as described by the Plaintiff during the administrative proceeding on the date she set out in her application for ADR; and

[3] The alleged physical and psychological injuries caused by the alleged physical assault did not result from an accident or arise in the course of Plaintiff's performance of her duties.

As to Plaintiff's claim that she was deprived of due process, the Appellate Division said that allegation "is belied by the record showing that she was given an adequate opportunity to present her case before [the NYCERS]."

The decision is posted on the Internet at

http://www.nycourts.gov/reporter/3dseries/2020/2020_06229.htm.