There is no statutory, constitutional, or public policy prohibition barring arbitrating the termination of an employee serving in an "exempt class" position

Teamsters Local 445, [Teamsters] initiated a CPLR Article 75 seeking a court order compelling the Town of Monroe Planning Board arbitrate its termination of the Board's secretary, a position in the Unclassified Service.*

The Town of Monroe moved to dismiss the petition, contending that:

[1] The dispute was nonarbitrable; and

[2] Teamsters failed to make a timely demand for arbitration.

Supreme Court denied the Town's motion and the Town appealed.

The Appellate Division sustained the Supreme Court's ruling, explaining a dispute between a public sector employer and an employee is arbitrable if it satisfies a two-prong test.

The first test - the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If the matter survives the first test, the court must next determine whether the parties agreed to arbitrate the particular dispute "by examining [the] collective bargaining agreement" [CBA] between the parties.

Finding that there was no statutory, constitutional, or public policy prohibition against arbitrating this dispute regarding the termination of an employee in an "exempt class", the Appellate Division, sustaining the Supreme Court's determination, concluded that the parties CBA indicates that the relevant CBA "authorized the Teamster to file grievances, and ultimately demand arbitration, on behalf of bargaining unit employees, including the secretary to the Planning Board, irrespective of her [jurisdictional] class designation under the Civil Service Law."

Citing Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, the Appellate Division opined that where, as here, the relevant arbitration provision of the CBA is broad, providing for arbitration of any grievance involving "a claimed violation, misinterpretation or inequitable application" of the CBA, a court "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA." Assuming that the court finds that the matter is arbitrable, the arbitrator will then make "a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them."

Finding a reasonable relationship existed between the subject matter of the dispute and the general subject matter of the CBA, the Appellate Division declared that the issue of whether the Board's secretary was afforded tenure protections within "the scope of the substantive provisions of the CBA is a matter of contract interpretation and application reserved for the arbitrator."

Addressing the issue of whether the Teamsters' demand for arbitration was timely, the Appellate Division concluded that this was "a matter of procedural arbitrability to be resolved by the arbitrator," citing Enlarged City School Dist. of Troy [Troy Teachers Assn.], 69 NY2d 905.

Sustained the Supreme Court's determination denying the Town's motion to dismiss the petition, the Appellate Division dismissed its appeal.

* Positions in New York State's "Classified Service" [Civil Service Law §40] are placed in one of four jurisdictional classifications: the exempt class, [see Civil Service Law §41]; the noncompetitive class [see Civil Service Law §42]; the labor class [see Civil Service Law §43]; or the competitive class [see Civil Service Law §44]. Other jurisdictional classifications are the Unclassified Service [see Civil Service Law §35] and the State's Military Service [see Military Law §2].

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06535.htm

 

The New York State Department of Civil Service posted the following Position Classification Standards on the Internet on December 14, 2020

Classification Standard issued by the New York State Department of Civil Service on December 14, 2020 in PDF format. Click on the title of the position to download the standards for that title.

Associate Attorney (Health Care Regulation)

Associate Director & Director Veterans Home Nursing 1 & 2

Child Support Specialist Series

Compliance Assistant

Driver Improvement Examiner Series

Environmental Laboratory Consultant

Farmer

Health Systems Specialist Series

Library Technical Assistant

Medical Assistance Specialist Series

Motor Vehicle Field Operations Specialist Series

Pharmacy Consultant

Public Health Educator

Public Health Sanitarian Series

Teaching & Research Center Licensed Practical Nurse

The custodian of the records containing the names of retired police officer may refuse to disclose such names demanded pursuant to a Freedom of Information Law request

Supreme Court granted the CPLR Article 78 petition filed by the Empire Center for Public Policy [Empire Center] seeking an order compelling New York City Police Pension Fund [Fund], under color of New York State's Freedom of Information Law [FOIL], to provide unredacted records disclosing the names of all police officers retiring during fiscal year 2017 other than the names which the Fund had earlier withheld in response to Empire Center's 2014 FOIL request.

The Fund appealed portions of the Supreme Court's ruling and the Appellate Division, unanimously modified the Supreme Court's order, on the law.

The Appellate Division first noted that Supreme Court had properly upheld the Fund's decision to refuse to disclose the names of 2008 to 2014  police officer retirees as [1] duplicative and, or, [2] time-barred.

Addressing the Fund opposition to disclosure of records providing the names of the retired police officer retirees demanded by Empire Center, the Appellate Division noted that the Fund had submitted affidavits outlining the dangers faced by police officers generally, and detailing the risks retired officers faced in particular, including thefts of handguns and assaults by persons they had arrested during their careers.

Citing Matter of Bellamy v New York City Police Dept., 87 AD3d 874, the Appellate Division opined that the Fund met its burden of showing a possibility that disclosure of [such] names could endanger the lives or safety of police retirees, as required to exempt them from disclosure pursuant to Public Officers Law §87(2)(f)".

Public Officers Law §87(2), among other limitations concerning the disclosure of its records, provides that "Each agency shall, in accordance with  its  published  rules,  make   available  for  public  inspection  and copying all records, except that  such agencymay deny access to records or portions thereof* that:

 "(a) are specifically exempted from disclosure by state or federal statute; and

 "(f) if disclosed could endanger the life or safety of any person."

* Emphasis supplied.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06949.htm

 

Audits issued by the New York State Comptroller during the week ending December 10, 2020

Click on the text highlighted in colorto access the complete audit report.

 

Municipal Audits

On December 10. 2020, New York State Comptroller Thomas P. DiNapoli announced the following local government audits has been issued.

Cayuga County Soil and Water Conservation District – Financial Condition District officials did not effectively manage the district’s financial condition, and it declined approximately $1 million during the audit period because of the board’s hindered ability to recognize revenue shortfalls or cost overruns, limiting any potential corrective action. The 2016 through 2020 adopted budgets were not realistic. Revenue and expenditure estimates were not based on prior years’ actual results or trends and did not contain estimates for all known revenues and expenditures. The adopted budgets were also not maintained in the financial accounting software. In addition, no budget-to-actual reports were prepared to monitor the district’s financial health. Comprehensive multiyear strategic, financial and capital plans were also not developed.

Cayuga County Soil and Water Conservation District – Information Technology Governance District officials did not establish adequate controls over information technology (IT) assets. The board did not develop comprehensive IT policies or procedures. The board also did not enter into a written service level agreement with the IT vendor. In addition, the board did not establish adequate safeguards for online banking transactions. Auditors also found the board did not implement strong access and financial application controls nor did they provide IT security awareness training for employees.

Town of Corning – Procurement (Steuben County) Town officials did not always seek competition, as required, when purchasing goods or obtaining professional services. Of the purchases totaling $455,792 from 35 vendors and 10 professional service providers examined, town officials purchased goods and services totaling $299,046 from 21 vendors and nine providers without using competitive methods. Officials also did not enter into a contract with any of the 10 providers. Auditors found a one-year mowing contract was awarded for $26,000 to a company owned by a board member’s son even though the company was not the lowest bidder. The board also extended the contract for another five years without seeking competition. Although the board was required to document its rationale for awarding the contract to a higher bidder, they did not do so.

Nyack Parking Authority – Parking Ticket Operations (Rockland County) The board and authority officials did not effectively pursue and maximize the collection of parking violation tickets. Auditors determined the board and authority officials did not provide oversight and were unaware of inconsistencies in penalty assessment, delinquent notices and collections. The board and authority also did not establish a benchmark collection rate. If the industry standard collection rate of 85 percent was achieved, over the five-year period, the authority would have collected additional revenue totaling $572,609. In addition, the board and authority officials did not review the number or the amount of outstanding tickets or consider alternatives to increase collections.

 

 School District Audits 

On December 10, 2020 New York State Comptroller Thomas P. DiNapoli announced the following school district audit has been issued.

Chenango Forks Central School District – Nonresident Tuition (Broome and Chenango County) District officials did not adopt a clear and comprehensive nonresident admission or tuition policy. As a result, auditors could not determine exactly which students should have been classified as a nonresident student and should have been billed tuition. In addition, some student records contained insufficient documentation to support residency or exceptions to the policy.

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.

 

 

Finding a reasonable relationship between the subject matter of a grievance and certain provisions set out in a collective bargaining agreement is often the key to submitting the dispute to arbitration

The Yonkers City School District School Board [Board] and the Yonkers Federation of Teachers [YFT] were parties to a collective bargaining agreement [CBA] negotiated pursuant to Article 14 of the Civil Service Law, the so-called "Taylor Law". YFT filed a grievance alleging that "someone disclosed confidential information to the public" related to disciplinary charges involving two tenured teachers represented by YFT filed a "contract grievance," claiming a violation of the Board's Code of Ethics and the relevant CBA, and ultimately demanded that the matter be submitted to arbitration. 

The Board objected to submitting the issue to arbitration and commenced a CPLR Article 75 proceeding seeking a court order to permanently stay the arbitration demanded by YTF. YTF, in response, filed a motion to compel arbitration. The Supreme Court dismissed the Board's petition and granted YFT's motion seeking to compel arbitration of its grievance whereupon the Board appealed the Supreme Court's ruling.

The Appellate Division affirmed the Supreme Court's decision. The court explained that "Public policy in New York favors arbitral resolution of public sector labor disputes," noting, however, that a dispute between a public sector employer and a public employee organization concerning a provision set out in a CBA will survive a motion to stay the arbitration if it fails the "two-prong test" used by New York State courts in resolving such matters.

The first test, said the court, is determining if there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If no such prohibition is found, the second test is for the court to determine if the parties did, in fact, agree to arbitrate the particular dispute.

The Board, in the course of its argument before the Appellate Division, asserted, for the first time, that the arbitration of YFT's grievance was prohibited by General Municipal Law §806 and public policy, contending that the Board had "reserved its right to adopt the Code of Ethics authorized by the statute."

With respect to the first test, the Appellate Division opined that the Board may raise such an argument for the first time on appeal, citing  Matter of NiagaraWheatfield Adm'rs Assn. [NiagaraWheatfield Cent. School Dist.], 44 NY2d 68. The court, however, rejected the Board's argument as being without merit, pointing out that the fact that a violation of the Board's Code of Ethics is a potential basis for disciplinary action does not render it nonarbitrable.

Turning to the second test, the Appellate Division said that the Board contended that the grievance is excluded from arbitration as there is no reference in the CBA to the Code of Ethics.

The Appellate Division rejected this contention as well, explaining that when a court is analyzing whether the parties did, in fact, agree to arbitrate the particular dispute, the court "is merely to determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA," citing Matter of Board of Educ. of Yorktown Cent. Sch. Dist. v Yorktown Congress of Teachers, 98 AD3d 665.

The Appellate Division observed that it has held that the arbitration provision of the CBA at issue here was broad and found that there was a reasonable relationship between the subject matter of the instant dispute, the disclosure to the public of confidential information regarding disciplinary charges against tenured teachers, and the general subject matter of the CBA, including the terms and conditions of employment.

Thus, said the court, it agreed with the Supreme Court's determination denying the Board's petition seeking a permanent stay of YFT's demand that its grievance be submitted to arbitration and granting the YFT's motion to compel the arbitration of its grievance.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06524.htm