Vacating an arbitration award pursuant to CPLR §7511

The Employer sought to terminate an Employee based on his arrest, criminal conviction, and the nature of the charges.

The collective bargaining agreement between the Employer and the Employee's collective bargaining representative [Union], provided arbitration is mandatory when the Employer seeks to discipline or terminate any employee. The Arbitrator was to decide whether the Employer had just cause for disciplining the employee and, if so, whether termination was the appropriate penalty.

The Arbitrator found that the Employer [1] had just cause to discipline Employee; [2] the Employee's actions created "adverse criticism" for the Employer; and [3] based on compelling mitigating factors, the appropriate penalty was a time-served suspension without pay rather than termination.

The Employer moved to vacate the award pursuant to CPLR 7511. The Union opposed the Employer's motion.

Noting that arbitration is highly favored in New York, Supreme Court, citing Falzone v NY Central Mutual Fire Insurance Company, 15 NY3d 530 and Goldfinger v Lisker, 68 NY2d 225, said although "courts seldomly disturb arbitration awards even if the courts would have reached a different conclusion ... [an] arbitration award, however, may be vacated upon a judicial finding that the rights of one of the parties was prejudiced by one of three reasons, the partiality of the arbitrator; or by corruption, fraud, or misconduct on the part of the arbitrator; or by a finding that the arbitrator exceeded her or his powers."

Observing that in Goldfinger the Court of Appeals expressly held that "precisely because arbitration awards are subject to such judicial deference, it is imperative that the integrity of the process, as opposed to the correctness of the individual decision, be zealously safeguarded", Supreme Court opined that although Arbitrator prepared a thorough 14-page Opinion and Award, "the Opinion part lacks neutrality."

In the words of the court, "The Arbitrator crossed the thin and often difficult line between a compassionate neutral and an advocate for one side, the employee. The Arbitrator mistakenly believed that his role was to render a decision that aided and supported the employee's re-integration into the community rather than fairly and objectively decide an employer-employee dispute. In doing so, the Arbitrator prejudiced the [Employer's] right to a fair and impartial arbitration process."

Supreme Court then vacated the award on the ground of partiality pursuant to CPLR 7511(b)1.[ii] and, in compliance with the applicable terms of the collective bargaining agreement, ordered the matter remitted "expeditiously to arbitration with another arbitrator."

* The employee plead guilty to the crime of attempted endangering the welfare of a child.

Click HERE to access the Supreme Court's decision posted on the Internet.

 

Selected links to items focusing on government operations posted on the Internet during the week ending November 3, 2023

Accelerating Traffic Safety Analysis

Biden Signs Executive Order Regulating Artificial Intelligence President Joe Biden is directing the government to take a sweeping approach to artificial intelligence regulation, his most significant action yet to rein in an emerging technology that has sparked concern and acclaim. READ MORE

Cyber Teams, Criminals Are Looking for Wins With Generative AI Companies are embracing cyber defenses based on generative AI hoping to outpace attackers’ use of tools like FraudGPT, the “villain avatar of ChatGPT.” But more effort is needed, experts warn. READ MORE

Digitizing Disbursements: The Next Step in Modernizing Government Transactions

Education Safety Summit Tackles Cybersecurity, Social Media The National Summit on K-12 School Safety and Security highlighted free cybersecurity resources for schools and explored how adults can work with children to address the mental health impacts of social media. READ MORE

Embracing Intelligent Automation

Federal Government Offers Cybersecurity Toolkit for Health Sector CISA and partners announced a toolkit bringing together advice and other resources to help health care and public health organizations improve their cyber postures. READ MORE

High-Velocity IT Service Management for Government

How Are State and Local Governments Navigating AI Regulation? President Joe Biden signed an executive order to regulate artificial intelligence, but how are state and local governments handling it? Many are exploring how AI can enhance services, while others are temporarily banning its use. READ MORE

Keeping Up With State and Local AI Policies and Guidelines Regulations around generative AI are rapidly evolving. This list will keep you up to date on what governments are doing to increase employee productivity and improve constituent services while minimizing risk. READ MORE

Learn How Public Sector IT Leaders are Closing Cyber Risk Gaps Created by Visibility Silos The mission: reduce the exposure of critical public infrastructure and services to cyberattacks. The roadblock: too many tools, yet not enough insight. The solution? Tanium. EXPLORE THE SOLUTION

Leveraging Identity: A Public Sector Guide for External Services

OMB Offers Draft AI Implementation Guidance for Comment New draft policy from the U.S. Office of Management and Budget aims to offer guidance for AI governance structures that will help agencies to implement and apply AI technologies in a responsible way. READ MORE

Personalizing Constituent Journeys: Measuring Digital Government Experiences 

Securing America's Digital Infrastructure We round up industry best practices on topics such as security, threats, and privacy. See how companies are helping state and local agencies tackle and prepare for all things cybersecurity.

The Public Sector Guide to Generative AI 

Tyler's New AI Acquisition Focuses on Government Field Work The gov tech giant has bought ARInspect, which sells an AI-backed platform for inspections of bridges, utilities and other public-sector assets and facilities. The move marks Tyler’s second AI buy in recent months. READ MORE

Vital U.S. Partnerships With Canada on All Things Cyber At the InCyber Forum North America, held this past week in Montréal, Canada, the importance of maintaining meaningful global partners in cybersecurity was never more evident. READ MORE

Website Redesign Tool Kit

What Artificial Intelligence Can Do for Public Works and Transportation

 

Evaluating an application for accidental disability retirement

Petitioner, a police officer, applied for accidental disability retirement benefits claiming that she was permanently incapacitated from performing her job duties due to injuries sustained in three incidents while "on the job".

At the hearing Petitioner conceded in her post hearing brief that the one incident, Incident #1, did not constitute an accident.* 

The Hearing Officer then found that the other two incidents reported did not constitute accidents within the meaning of the Retirement and Social Security Law. The Comptroller affirmed the Hearing Officer's determinations and Petitioner initiated a CPLR Article 78 proceeding challenging the Comptroller's decision.

The Appellate Division sustained the Comptroller's ruling, explaining:

1. The applicant for accidental disability retirement bears the burden of establishing that the disability arose from an accident within the meaning of the Retirement and Social Security Law;

2. The Comptroller's determination will be sustained if supported by substantial evidence, citing  Matter of McDermott v Gardner, 215 AD3d 1206];

3. For purposes of the Retirement and Social Security Law, an accident is defined as "a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact"; and

4. An injury that results from "the performance of ordinary employment duties and is a risk inherent in such job duties" is not considered accidental, noting the Appellate Division's decision in Matter of Walsh v DiNapoli, 214 AD3d 1282.

Referencing Matter of Bodenmiller v DiNapoli, 215 AD3d 96, the Appellate Division opined: "precipitating events that arise out of a risk inherent in the petitioner's ordinary job duties, i.e., the work performed ... can never be considered accidents because, by definition, they are not unexpected and therefore cannot be the basis for an accidental disability pension ...". 

* During the administrative hearing Petitioner's had counsel conceded that Incident #1 was not an accident and did not cause Petitioner's permanent disabilities but subsequently  retreated from that concession. In her post administrative hearing brief Petitioner argued that Incident #1 was, indeed, an accident. The Hearing Officer found that the concession that Incident #1 was not an accident apparently was a mistake and proceeded to rule on the issue, affirmatively finding that Incident #1 was not an accident. Under the circumstances, the Appellate Division said given "the confusion" and the fact that Petitioner raised the issue concerning Incident #1 in her petition, and in her appeal brief, it elected to address Incident #1 "on the merits".

Click HERE to access the Appellate Division's decision posted on the Internet.

 

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Disability benefits for New York State and municipal employees

An e-book focusing on administering the Retirement and Social Security Law, General Municipal Law Sections 207-a/207-c and similar laws providing disability benefits to employees of the State of New York and its political subdivisions. 

For more information and access to a free excerpt of the material presented in this NYPPL e-book, click on http://booklocker.com/books/3916.html.

 

 

 

 

Former Morley Fire Volunteer Company treasurer pleads guilty to stealing over $16,000

On November 2, 2023, New York State Comptroller Thomas P. DiNapoli announced a  former treasurer of the Morley Volunteer Fire Co., Cindi Perkins, pleaded guilty to grand larceny in the fourth degree for stealing over $16,000 from the company over a three-year period.

DiNapoli said “Ms. Perkins was entrusted with money meant to protect her community. Instead, she betrayed the fire company and her neighbors by enriching herself.” Noting that combating fraud and protecting taxpayer money is a priority of his, the Comptroller thanked "St. Lawrence County District Attorney Gary Pasqua and the New York State Police for partnering with [his] office to bring her to justice.”

Perkins, who worked for the fire company from 2016 to 2019, made unauthorized cash withdrawals, failed to deposit fire company funds, made unauthorized purchases, and wrote unauthorized checks to herself. The monies were a combination of payments from the Town of Canton and the Morley Fire District, as well as fundraising dollars.

Investigators found the 58-year-old Perkins, who controlled all aspects of the fire company’s finances, made more than $16,000 in personal cash deposits soon after similar cash amounts were paid to the Morley Volunteer Fire Co.

Bank records also showed ATM withdraws made from the Morley Volunteer Fire Company accounts at the Del Lago Resort and Casino and the Turning Stone Resort Casino.

Perkins used the stolen money for personal purchases including groceries, makeup, and other retail consumer items, investigators found.

Perkins, of Canton, pleaded guilty in St. Lawrence County Court. She is due back in court for sentencing on Jan. 3, 2024.

In another case of alleged "Jobbery" -- Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain" -- State Comptroller DiNapoli, Steuben County District Attorney Baker and the New York State Police announced the arrest of a former Village of Addison official for an alleged theft of more than $1.1 million. Click HERE for details.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at https://www.osc.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

New York City and New York State Human Rights Law complaints are generally analyzed under less demanding standard than are federal discrimination claims

Supreme Court's rejection of Defendants' [City Respondents] motion to dismiss Plaintiff's causes of action alleging discrimination and retaliation under the New York City Human Rights Law [City HRL] and New York State Human Rights Law [State HRL]; her aiding and abetting claims; and her claims under the Gender-Motivated Violence Act [GMVA]* was unanimously affirmed by the Appellate Division, without costs.

The Appellate Division held that dismissal of Plaintiff's federal discrimination claims at the pleading stage "does not preclude Plaintiff's City and State Human Rights Laws claims based on principles of collateral estoppel." 

In addition, the court noted that "employment discrimination claims brought under the City and State HRLs are generally analyzed under a more lenient notice pleading standard than federal discrimination claims and need only give a Defendant "fair notice" of the nature and grounds of Plaintiff's claims."

On a "motion to dismiss" a court a must accept allegations which evidence at least some gender-based animus as true. In this instance the Appellate Division found:

1. Plaintiff sufficiently pleaded her claims of discrimination and hostile work environment under the State and City HRLs by alleging she received more intense scrutiny and was excluded from meetings that her male, non-Black peer was invited to join;

2. Plaintiff had sufficiently pleaded her retaliation claim, as the complaint alleges, and therefore provides City Respondents with fair notice of City Respondents' alleged retaliatory conduct following Plaintiff's protected actions of filing various complaints and retaining counsel in response to City Respondents' allegedly discriminatory acts; and

3. Plaintiff sufficiently stated a claim under the GVMA as she alleged she had been physically harmed her by being struck by another individual and that individual had directed animus against another Black female employee in the past.

The Court said it must accept these allegations, which evidence at least some gender-based animus, as true on a motion to dismiss (Sassi v Mobile Life Support Servs., Inc., 37 NY3d 236, 241 [2021]).

* Administrative Code of City of NY § 8-903.

Click HERE to access the Appellate Division's decision posted on the Internet.