Determining if a demand to arbitrate an alleged violation of a term or condition set out in a collective bargaining agreement is viable

Teamsters Local 445 [Union] filed a demand for arbitration of a grievance against the Village alleging that the Village breached the parties' collective bargaining agreement [CBA] by deducting a certain amount from each paycheck of an individual in the relevant collective bargaining unit for health insurance costs.

The Supreme Court granted the Village's petition to permanently stay arbitration on the ground that the claim sought to be arbitrated was barred by the four-month statute of limitations applicable to CPLR Article 78 proceedings. The Appellate Division held that the "principal issues raised on this appeal are (1) whether the underlying claim is in the nature seeking review of an administrative determination or in the nature of breach of contract, and (2) if the latter, whether the claim is predicated on a single breach or a series of breaches that occurred with each paycheck.

The court determined that the nature of the claim is breach of contract and that the claim is predicated on a series of independent alleged breaches. The Appellate Division opined that as "the statute of limitations began anew as to each breach," it found that the claim to be arbitrated was not wholly time-barred and modified the Supreme Court's order to "permanently stay so much of the grievance as was not time-barred and granting the Union's cross-motion to the extent of compelling arbitration of so much of the grievance as was not time-barred."

As to the issue concerning whether a grievance is arbitrable, the Appellate Division, explained that the court must follow a two-part test* in making that determination:  

1. The court considers "whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance". If no prohibition against arbitrating exists; then

2. The court examines the CBA "to determine if the parties have agreed to arbitrate the dispute at issue.

Finding no constitutional, statutory, or public policy provision prohibiting the arbitration of the dispute at issue in this matter, the Appellate Division said with respect to determining whether the parties agreed to arbitrate the dispute, "the merits of the grievance are not the courts' concern. Even an apparent weakness of the claimed grievance is not a factor in the court's threshold determination. It is the arbitrator who weighs the merits of the claim."

In making that determination, "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. If there is none, the issue, as a matter of law, is not arbitrable.

In the event the there is such a "reasonable relationship", the court should rule the matter arbitrable, and 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".

The Appellate Division noted that "The plain terms of the CBA define a grievance to include a claimed violation of the CBA and provide that the Union may seek arbitration so long as it complied with the other steps of the grievance process". Such compliance was not in dispute in the instant appeal.

Here, however, the Village contended "that the matter is not arbitrable because the Union improperly amended the grievance in its demand for arbitration." The Appellate Division, however, said "the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them," is for the arbitrator to determine, citing  Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d at 143. Accordingly, the Appellate Division held that Supreme Court properly concluded that the subject demand for arbitration should not be stayed on the ground that a valid agreement to arbitrate was not made.

* See Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273.

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

New York State Comptroller Thomas P. DiNapoli reports that a former town clerk pled guilty to stealing almost $4,000 from the Town of Lincoln

On February 2, 2024, New York State Comptroller Thomas P. DiNapoli, Chenango County District Attorney Michael Ferrarese, and the New York State Police announced the plea and sentence of Amy Becker, former Clerk for the Town of Lincoln, for stealing nearly $4,000 from the Town. The plea was the result of a joint investigation between Comptroller DiNapoli’s Office, the Chenango County District Attorney’s Office, and the New York State Police. As part of the plea agreement she paid full restitution in the amount of $3,869.

“Ms. Becker abused her position by taking funds paid to her town and making them her own,” DiNapoli said. “Those in public service have a responsibility to act in taxpayers’ interests, not line their own pockets. I thank District Attorney Ferrarese and the New York State Police for their partnership in making sure she will be held accountable.”

New York State Police Acting Superintendent Steven G. James said, “Ms. Becker abused her position in a place of trust to concoct a devious scheme and steal funds from the town. The New York State Police will not tolerate those who misuse their position as a public servant to profit at the expense of taxpayers. I commend our State Police investigators for their outstanding work and thank the Comptroller’s Office and the Chenango County District Attorney’s Office for their partnership in solving this case.”

Becker, 54, pled guilty to petit larceny. She served as the town clerk of Lincoln from 2018 to 2022. During that time, she accepted payments for the town, including fees for marriage licenses, death certificates, and the dog pound, and was responsible for recording and depositing all funds.

During an audit of the town, DiNapoli’s office found a cash shortage. An ensuing investigation found that Becker failed to report $3,869 in cash deposits and, instead, embezzled the money for her personal use.

Becker pleaded guilty before Judge Stephanie Palmer in the Town of Lenox Court. She was ordered to, and paid, full restitution in the amount of $3,869 and received a one year conditional discharge.

###

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 investigations@osc.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

 

An administrative determination denying an employee's application for benefits pursuant to General Municipal Law §207-c annulled because it was not supported by substantial evidence

A detective sergeant [Employee] contracted COVID-19 at work. As the result of a positive test for COVID-19 the County Department of Health ordered Employee to "quarantine/isolate for 10 days" and Employee was subsequently hospitalized from August 21, 2021 through August 28, 2021. Employee applied for benefits pursuant to General Municipal Law §207-c [207-c], but County Director of Risk Management [Director] Employee's application as untimely pursuant to local law. Employee's request for reconsideration was denied and ultimately a hearing held pursuant to local law and the parties' collective bargaining agreement.

The Hearing Officer recommended the Director sustain the denial of Employee's application for207-c benefits on the basis that he failed to timely file his application and failed to show good cause to excuse the untimely filing. Director issued a determination adopting the Hearing Officer's recommendation in its entirety and Employee's collective bargaining representative commenced a CPLR Article 78 proceeding challenging the Director's determination.

The Appellate Division noting §207-c requires certain municipal employers to continue to pay salary or wages to police officers who sustain a disability in the course of their employment, indicated that "The statute is remedial in nature and intended to provide a benefit to law enforcement personnel and, as such, is to be construed liberally in favor of such personnel". Further, the court opined while 207-c does not provide a procedure for applying for benefits thereunder, a benefits application process may be the subject of collective bargaining and/or local law, "Judicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record".

In the words of the court, "As relevant here [the County Code] requires, among other things, applications for benefits under General Municipal Law §207-c to be made 'within 10 days from the date of the incident alleged to have given rise to the claim of disability or illness, or from the time such condition is discovered, whichever date is later.' The [Director] may excuse the failure to file the application within this [10]-day period upon a showing of good cause."

The Director had determined that the employee's September 17 application was untimely because it was not made within 10 days of his alleged work-related incident of August 9. Under the circumstances, the Appellate Division held that it was improper for the Director to use August 9, 2021 as the incident date that commenced the 10-day period within which Employee was required to file his application for benefits as Employee's application "clearly stated that he was informed on September 9, 2021 about his lung damage stemming from his contraction of COVID-19, and it was on this date that [Employee] first discovered the disability ... that gave rise to his claim and application for benefits."

The Appellate Division found that Employee made his application was made within 10 days of September 9, 2021, and, accordingly, "the Director's determination denying his application for benefits pursuant to General Municipal Law §207-c is not supported by substantial evidence and must be annulled."

The matter was remanded to the County's Director of Risk Management "for further proceedings not inconsistent with this Court's decision."

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

 

Selected links to items focusing on government operations posted on the Internet during the week ending February 2, 2024

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Axon Brings Its Public Safety Technology to Retail The provider of body cameras and Tasers to police is making a push into retail and health care via a new product line. That move comes amid larger changes in public safety tech. READ MORE

 

Baltimore City Schools Unveil 25 New Electric School Buses The new e-buses in Baltimore are part of a nationwide push to transition the U.S.' 480,000 school buses away from their dependence on fossil fuels. Officials say the new vehicles will mean quieter roads and facilities. READ MORE

 

Better Security Starts with Search Learn how the Texas A&M University System reduced detection time by 99% using Elastic. READ THEIR STORY

 

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Colorado Might Pay Former Inmates for Workforce Development A pilot program would provide $3,000 to people leaving Colorado prisons for basic living expenses if they agree to participate in a workforce development program. The proposal faces an uphill battle in the Legislature. READ MORE

 

Connecticut Proposes Lowering Alcohol Limit to Prevent Traffic Deaths During the first 22 days of this year, 17 people died in road crashes across the state. Legislators have proposed legislation to lower the blood alcohol level for arrest to .05, down from the current .08. READ MORE

 

Could an Emergency Declaration Help Save Louisiana’s Coastline? The state’s Coastal Protection and Restoration Authority has advised Gov. Jeff Landry that he should declare a state of emergency for coastal Louisiana. This would prod agencies to advance the state’s 50-year Coastal Master Plan. READ MORE

 

Creating More Than Just Pretty Websites Local government websites should be resident engagement tools, not digital brochures or org charts. We use intuitive navigation, smart search, and more for optimal self-service. Download the Fact Sheet

 

Disaster Zone Podcast: ‘Transforming Wildfire Management With AI’ Using technology to aid in prevention and mitigation. READ MORE

 

Empowering First Responders to Stay Connected This paper provides insightful information on enabling seamless emergency communications, the benefits of purpose-built communication devices in minimizing risks for first responders, and utilizing the capabilities of 5G to support a density of IoT devices and enable new capabilities DOWNLOAD PDF

 

Federal Agencies Team Up to Tackle AI DemocratizationThe U.S. National Science Foundation and other collaborating federal agencies are launching a national pilot to research, and ultimately bolster investment in, the area of artificial intelligence. READ MORE

 

Forum Questions Future of Digital Identity, Path Forward Panelists at a recent policy forum said passkeys with detection-enabled biometrics make for a more secure online future, but accessibility and digital equity concerns must be addressed. READ MORE

 

Fulton County, Ga., Cyber Attack Causing Major Outages Currently, residents cannot get new marriage certificates, election offices are closed, property transactions cannot be processed and online court record systems are unavailable. READ MORE

 

As Georgia introduces new legislation to address cyberbullying and regulate teenage social media use, other states with comparative laws are facing staunch legal challenges related to privacy. READ MORE

 

GSA Partners With Local, State Agencies on Notification Platform The U.S. General Services Administration has chosen to collaborate with four states to pilot a text notification platform geared toward enhancing internal and external communication surrounding federal benefits services. READ MORE

 

Homeless Point-in-Time Counts: Tech Means Better Data, Outcomes Point-in-time counts show government officials how and where homelessness impacts communities, informing the equitable distribution of resources. GIS tech and new processes are improving the accuracy of these counts. READ MORE

 

Improving cyber resiliency—now StateRAMP™ authorized Protect your agency’s data, ensure mission continuity, and stay resilient against any cyber threat. LEARN HOW

 

K-12 Cybersecurity Spending, Insurance on the Rise According to a survey by the school software company Clever, most K-12 administrators predict more cybersecurity spending in the near future, and most districts have cybersecurity insurance or are planning to acquire it. READ MORE

 

Keeping Deepfakes Out of Court May Take Shared Effort Court officials anticipate having messy debates over whether evidence is authentic or fabricated, with deepfakes skewing jurors’ decisions and digital forensics analysts helping to find the truth. READ MORE

 

Market for Disaster Management Tools Expands to Meet Need As hurricanes, wildfires and earthquakes grow in strength and frequency, first responders are increasingly adopting new digital tools like drones and integrated dispatch systems to improve response. READ MORE

 

Medicate, Mitigate and Rejuvenate: An Agenda for States in 2024 Mental health, climate and workforce are at the core of a complex cluster of issues confronting lawmakers this year. READ MORE

 

Micromobility Is Quickly Becoming a Digital Experience Artificial intelligence and other technology common to modern transportation systems are finding their way into bikes, scooters and other micromobility devices. READ MORE

 

New York City Pledges to Pay Off $2B in Medical Debt In 2022, Cook County, Ill., became the first local government to partner with the nonprofit group RIP Medical Debt to use private donor funds to buy up and forgive patient debt. Since then, seven local governments, including NYC, have joined the program. READ MORE

 

NTIA's Fiber-Only BEAD Policy Limits Broadband Expansion As states work to make use of federal broadband funding, a stipulation that the money can't be used for wireless networks is shortsighted and could hinder high-speed Internet access for those who need it now. READ MORE

 

People Who Visit Their Municipality's Website Are 5x More Likely to Trust Their Local Government. A frictionless online experience for your residents leads to increased use of online services. Learn the five features your website needs to increase resident self-service. GET MY eBOOK

 

Political Interference and the Future of Higher Education Public universities are under siege in too many places as elected officials move to install new leaders and limit what can be taught. Educational institutions should be safe for learning and as incubators for democracy. READ MORE

 

Secure Access Service Edge Architecture (SASE) Explained SASE has emerged in recent years as a definitive aspect of modern network architecture and security. Learn about this in the latest explainer brief. DOWNLOAD NOW

 

State of the States 2024: AI Ushers in ‘Dawn of a New Era’ From broadband and electric vehicles to social media and AI, we look at where governors hope to invest state budgets as they deliver their biggest speeches of the year. READ MORE

 

Telehealth, Analytics Tools Impact the Work of Public Health Offerings from companies like Lyssn and Biobot Analytics have the potential to majorly change not only how people access physical and mental health services, but how government responds to those needs. READ MORE

 

Texas Oil and Gas Pays $26.3B in State and Local Taxes, Royalties The industry paid the highest total of state and local taxes and state royalties last year in all of Texas history, breaking last year’s record by more than $1.5 billion. The taxes translate to $72 million daily for schools, roads, first responders and more. READ MORE

 

The Case for Meaningful Public University Oversight Culture-war conflicts obscure our neglect of a responsibility for holistic, constructive legislative oversight of public higher education. Lawmakers should hold governing boards accountable for meeting the needs of their students. READ MORE

 

The Challenges Suburbs Face in Refilling Office Space Urban downtowns are navigating a “doom loop” of office vacancy, retail decline and lower transit ridership. Things look both a bit different and somewhat similar in the suburbs. READ MORE

 

The Increasing Trend of Lawmakers Overriding Ballot Initiatives Legislatures and governors are not afraid of undermining — or even downright repealing — citizen initiatives that win at the ballot box. READ MORE

 

The Terrifying New Tactic Used to Harass Public Officials Swatting — falsely reporting a serious emergency to provoke aggressive police response — is on the rise. Fighting this dangerous and distracting trend remains challenging, both legally and technologically. READ MORE

 

Three Dallas-Area Races That Could Reshape Local Politics The low-profile primary races in state House District 108 and the contest for Dallas County Republican Party chair will have wide-reaching impacts. READ MORE

 

Vermont IT Modernization Takes a Relationship-First Focus Vermont is revamping legacy IT systems, some of which are 50 years old, while also exploring uses for new technologies, including artificial intelligence. READ MORE

 

Washington State Lawmakers Look to Tackle Generative AI Gov. Jay Inslee has signed an executive order requiring state agencies to make guidelines for the use of artificial intelligence that mimics the human brain to create new pictures, words, sounds and videos. READ MORE

 

What It Will Take to Make Rural Broadband Affordable — and Keep It That Way Tens of billions in federal funds are on the way to spread high-speed Internet across the countryside. States should structure their grant programs to make sure markets are competitive. READ MORE

 

Where Pension Incentive Pay Makes Sense — and Doesn’t Long-term financial incentives for investment success are commonplace in the private sector, but tricky to design in public retirement plans. The implementation challenges are structural, operational, methodological and, yes, political. READ MORE

 

Why AI Can’t Replace Air Traffic Controllers An air traffic safety expert explains why humans will remain central to managing the nation’s airports and airspace even as AI promises to improve air traffic control. READ MORE

 

Unlawful discrimination complaint dismissed for lack of sufficient evidence to support employee's claim that supervisory behavior was motivated by the employee's protected status

The Appellate Division affirmed a motion court's dismissal of petitioner's [Plaintiff] CPLR Article 78 petition in which she alleged that she was the victim of unlawful discrimination, worked in a hostile work environment, and suffered retaliation within the meaning of the New York City Human Rights Law.

Citing see Harrington v City of New York, 157 AD3d 582, the Appellate Division said although Plaintiff's claim "sufficiently pleaded the first two [the four required] elements of discrimination, i.e.  her membership in a protected class and qualification for the position," she failed to [1] "adequately allege that she was treated differently or worse than her colleagues of other races, religions, and national origins under similar circumstances" and [2] "that the treatment occurred under circumstances giving rise to an inference of discrimination."

The Appellate Division opined "Plaintiff failed to identify any similarly situated colleagues who were treated more favorably because they were not Black, Christian, or Haitian." Although Plaintiff argued that she was the subject of disparate treatment as compared to a white and Jewish coworker "who was allegedly not subject to any scrutiny, was repeatedly promoted, and was permitted to work overtime," Plaintiff failed to demonstrate that she and her coworker were "similarly situated in all material respects".

Plaintiff's complaint simply stated "the coworker was less qualified and less experienced than [Plaintiff]" rather than allege coworker had the same job title as Plaintiff, had the same responsibilities or job requirements as Plaintiff, reported to the same supervisors as Plaintiff, or that she was even employed in the same unit as Plaintiff. To the extent the complaint alleged that Plaintiff was the only employee with her title who was required to clock out at lunch, she never alleged that any of her colleagues had any disputes with supervisors about wanting to work through lunch.

Plaintiff also failed to plead any facts showing that she was treated differently because of her race, religion, or national origin. Plaintiff's complaint did not allege that any of Plaintiff's colleagues or supervisors made any explicitly or implicitly invidious comments about her race, religion, or country of origin but merely claimed that on one occasion "a supervisor stated to her that she was being mistreated by a different supervisor because of her race." In the words of the Appellate Division, "[s]tray remarks such as [this], even if made by a decision maker, do not, without more, constitute evidence of discrimination."

Observing that Plaintiff was promoted in 2017, a position that she continues to hold, by the same individuals Plaintiff now claims unlawfully discriminated against her, the Appellate Division said "undercuts an inference that these individuals discriminated against her".

As to Plaintiff's hostile work environment claim, the court said "this failed for the same reason." Although Plaintiff's complaint alleged that her supervisors regularly and unjustifiably criticized her work and engaged in other behaviors, even assuming that the alleged acts or omissions amounted to more than petty slights and trivial inconveniences, the Appellate Division held that the evidence "is not sufficient to establish that [Plaintiff's] supervisors' behavior was motivated because of her protected status, such as her race, religion, or national."

As to Plaintiff allegations of retaliation following her filing a notice of claim and the charge of discrimination whereby her supervisors instituted a rule where she was required "to clock out during her lunch hour and enforced the agency's overtime cap", the Appellate Division concluded that Plaintiff "failed to plead sufficient facts as to why these mandates would dissuade a reasonable employee from complaining about discrimination, or why it constituted anything more than a trivial harm."

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