An individual seeking certain records disclosed by a party in another litigation must show that such records are “in controversy” in his or her action

An individual seeking certain records disclosed by a party in another litigation must show that such records are “in controversy” in his or her action

A teacher [Teacher] at a State correctional facility alleged that she had been subjected to unlawful discrimination based upon sex, age and disability and then subjected to retaliation for complaining about such alleged discrimination by her supervisor.

Supreme Court denied Teacher’s motion seeking the production of her supervisor’s medical records, which decision was sustained by the Appellate Division.

The Appellate Division explained that “[e]ven assuming, arguendo, that [the supervisor] waived the physician-patient privilege with respect to those records by disclosing them in an action commenced by [her] in federal court, we conclude that [Teacher] failed to meet her initial burden of making an evidentiary showing that [the supervisor’s] medical condition ‘in controversy’ in this action,” citing CPLR §3121[a].

The Appellate Division commented that “[t]he fact that [the supervisor] affirmatively placed her medical condition in controversy in the related action she commenced in federal court does not relieve [Teacher] of her initial burden herein.” 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00853.htm

An arbitration award that is rational and which neither violates strong public policy nor exceeds the power of the arbitrator may not be vacated by the courts

An arbitration award that is rational and which neither violates strong public policy nor exceeds the power of the arbitrator may not be vacated by the courts
New York Finger Lakes Region Police Officers Local 195 of Council 82, AFSCME, AFL-CIO (City of Auburn), 2013 NY Slip Op 00844, Appellate Division, Fourth Department

The Finger Lakes Region Police Officers Local 195 appealed Supreme Court's rejection of its petition to vacate an arbitration award in which the arbitrator had determined that the City of Auburn had not violated the terms of the relevant collective bargaining agreement (CBA) when it terminated the employment of one of the members of the Local.

The Appellate Division sustained the lower court’s ruling, explaining that "[a]n arbitration award may be vacated if it is irrational, violates a strong public policy, or clearly exceeds a specifically enumerated limitation on the arbitrator's power*" Here, and notwithstanding the Local’s arguments to the contrary, the Appellate Division concluded that the arbitrator's interpretation of the CBA was not irrational, "nor did the arbitrator alter the terms of the CBA based on his interpretation of its terms so as to exceed his authority."

Citing Communication Workers of Am., Local 1170 v Town of Greece, 85 AD3d 1668, leave to appeal denied 18 NY3d 802, the Appellate Division noted that an arbitrator is required to interpret and apply the terms of a CBA and while another entity could have applied a different construction to the relevant provision of the agreement, in this instance “it cannot be stated that the arbitrator gave a completely irrational construction to the provision in dispute and, in effect, exceeded [his] authority by making a new contract for the parties."

* §7511 of the Civil Practice Law and Rules sets out a number additional reasons that permit a court to set aside an arbitrator’s award such as a finding of corruption, fraud or misconduct in procuring the award; the partiality of an arbitrator appointed as a neutral,[except where the award was by confession], or the failure to follow procedures set out in Article 75 unless the party seeking to vacate the award on such grounds continued with the arbitration with notice of the defect[s] without objection.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00844.htm

Tentative Taylor Law contract agreement for SUNY employees in collective bargaining units represented by United University Professions announced

Tentative Taylor Law contract agreement for SUNY employees in collective bargaining units represented by United University Professions announced

Governor Cuomo and United University Professions [UUP] President Smith announce agreement on a  tentative Taylor Law contract agreement for State University of New York [SUNY] employees in collective bargaining units represented by United University Professions.

On February 19, 2013 Governor Andrew M. Cuomo and United University Professions [UUP] President Phillip H. Smith announced a tentative contract agreement between the state and the union representing more than 35,000 SUNY employees. UUP members had been without a contract since 2011. The proposed agreement is tentative pending ratification by UUP membership.

According to the State Budget Office, the agreement will save approximately $87 million in wages through a Deficit Reduction Program over the contract period. All changes to health benefits will save $99 million over the contract period.

The tentative pact includes the following provisions:

1. Zero percent wage increases for the three years 2011-2013, and 2% increases in 2014 and 2015.

2. Deficit Reduction Program involving nine days [of wages] over the contract period.

3. A two percentage point increase in health insurance premium contributions for employees earning less than $40,137, making the share 12% for individuals and 27% for family premiums.

4. A six percentage point increase for employees earning $40,137 and above, making the share 16% for individuals and 31% for family premiums.

5. Benefit design changes for use of out of network services in the Empire Plan, including deductible and coinsurance increases for out of network medical benefits.

6. A health plan opt-out provision so employees can opt-out through a spouse/partner to a non-State health plan.

7. Three payments of $500, $500, and $250 to be awarded to employees at the discretion of the Chancellor. UUP members receive no "step" increases or longevity payments but campus presidents may make performance incentive lump sum payments of 0.5% annually (1% at end of the contract term).

The American Arbitration Association [AAA] will conduct a ratification vote by mail this spring. UUP members will have approximately three weeks to return their ballots to AAA.

Seniority for the purposed of layoff held to include both a teacher's "actual full-time service rendered" and his or her full-time regular substitute service in the tenure area

Seniority for the purposed of layoff held to include both a teacher's "actual full-time service rendered" and his or her full-time regular substitute service in the tenure area

Education Law §2510[2] provides that a school district that abolishes a teaching position for economic reasons must discontinue "the services of the teacher having the least seniority in the system within the tenure of the position abolished." As this decision demonstrates, an incorrect determination with respect to which teacher is “least senior” for the purposes of layoff could prove expensive to the school district.

A teacher [Teacher] challenged the Board of Education’s determination that she was the least senior teacher in the foreign language tenure area. Teacher contended that the Board’s determination was affected by an error of law and was arbitrary and capricious. As redress, Teacher sought "seniority credit" for certain services as a substitute teacher that she had rendered to the District, reinstatement to her former position, and "restitution" for damages that she allegedly sustained as a result of the School Board's determination, which, in effect, terminated her employment.

The Appellate Division annulled the Board’s determination with respect to Teacher’s seniority for the purposes of layoff and it was [1] directed to award seniority credit to her for her service between November 6, 2006 through and including February 10, 2010, and [2] directed to reinstate her to her position as a full-time probationary teacher in the foreign language tenure area with back pay and benefits.* 

The significant issue in this action was the criterion used in determining a teacher's seniority, i.e., the "actual full-time service rendered" including full-time regular substitute service in a particular tenure area prior to his or her probationary appointment in that same area** and the rationale for equating full-time substitute service with full-time probationary service for seniority purposes.

The Appellate Division explained that employment as a regular substitute "constitut[es] employment by the board of education on a permanent basis" and is "equivalent to service rendered pursuant to a probationary appointment in contrast to an 'itinerant' or per diem substitute assigned on a temporary, as-needed basis" for which the educator does not accumulate seniority for the purposes of layoff.

The court noted that the District had argued that Teacher’s resignation severed her employment relationship with the District and that she therefore lost all seniority accumulated prior to that time notwithstanding the fact that Teacher had agreed to "resign" in exchange for the District's promise to immediately rehire her as a substitute teacher and to reappoint her to a new full-time probationary position upon her obtaining permanent certification to teach. The Appellate Division disagreed with the District's theory as to the effect of Teacher's resignation under the circumstances.

Although the District was correct that a teacher who voluntarily severs all of his or her professional relationship with a school district through retirement or resignation forfeits his or her seniority rights under Education Law §2510, the Appellate Division questioned whether Teacher’s resignation, under the relevant facts in this case, could be deemed to have been voluntary, noting that:

1 "Public policy" favors the protection of an employees' seniority rights;

2. Although an employee may relinquish his or her seniority rights by resigning or retiring, such a relinquishment must be knowing and voluntary, i.e., the employee must take "affirmative steps" to terminate all aspects of his or her employment by a school district and in the absence of a specific contrary intent, an employee who merely assents to being reassigned to a different title within the same tenure area — even under the guise of a resignation — is not deemed to have "resigned" for purposes of determining his or her seniority credit so long as the title to which he or she is reassigned is otherwise appropriate for inclusion in determining seniority credit in the tenure area.

3. Neither the District nor Teacher complied with the requirements of Education Law §3019-a ("Notice of termination of service by teachers"), which governs the formal resignation and termination of probationary teachers.

4. The record was devoid of any intent or affirmative act by Teacher to sever all aspects of her employment relationship with the District and thereby relinquish her seniority rights.

5. Unlike the severance cases relied upon by the School District, the circumstances in this case did not evince an intent by either Teacher or the District to sever their professional relationship but instead the arrangement allowed Teacher to continue teaching in the District while her permanent certification was pending.

6. There was no actual break in Teacher's service to the District as a result of her "resignation" as the resignation was effective at the end of the day on October 1, 2009 and the next day she returned to the same classroom to teach the same subject to the same students during the same hours.***

Accordingly, as noted earlier, the Appellate Division modified Supreme Court’s ruling “on the law,” and granting Teacher’s petition in part, annulled the District's determination, awarded Teacher seniority credit for the period from November 6, 2006 through February 10, 2010, and directed the District to reinstate Teacher to her former position as a probationary teacher in the foreign language tenure area, with back pay and benefits.

* N.B. The decision notes that Supreme Court held that the District was "justified in giving more seniority credit to another teacher because that teacher had obtain … permanent certification at an earlier date.” The Appellate Division said that "[s]eniority [for the purposes of layoff] … relates only to length of service" and considerations such as prior experience, training, or educational qualifications are not properly included therein.”

** Teacher’s service with the School District for the purposed of determining her seniority within the meaning of §2510[2] of the Education Law is set out in some detail in the Appellate Division’s decision.

*** The Appellate Division characterized Teacher’s "resignation" as essentially "a legal fiction designed to allow Teacher to continue her duties as a full-time Spanish teacher while ensuring the District's compliance with the Education Law, which prohibits a school district from employing uncertified teachers."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00867.htm

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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Opportunity to cross-examination witnesses a critical element to due process in quasi-judicial administrative proceedings

Opportunity to cross-examination witnesses a critical element to due process in quasi-judicial administrative proceedings

Barber v New York State Off. of Victim Servs, 2013 NY Slip Op 00958, Appellate Division, Third Department

An individual [Applicant] installed certain security and surveillance devices in response to alleged stalking and harassment the Applicant had experienced. Applicant filed a request for reimbursement for the cost of such devices with the State’s Office of Victim Services, which application was rejected on the ground that Applicant failed to prove that a crime had been committed.

Applicant appealed and a hearing was conducted by a three-member panel of the Office of Victim Services. The panel affirmed the disallowance of Applicant ‘s claim.

In response to Applicant‘s challenging the panel’s determination, the Appellate Division said that notwithstanding the substantial evidence in the record to support Victim Service’s denial of Applicant’s claim, reversal of the ruling was required because Applicant was not provided with the opportunity to cross-examine witnesses providing testimony at the hearing.

According to the decision, although the panel was advised that Applicant was waiting in the lobby for the hearing to begin, the panel members conducting the hearing made the affirmative decision to take the testimony from one of the witnesses without the Applicant being present. Further, Applicant was only invited to attend the hearing following the conclusion of that witness's testimony and Applicant was asked to leave the hearing after testifying. Then, said the court, testimony was taken from a second witness without Applicant being present.

The Appellate Division ruled that as Applicant was denied the right to cross-examine witnesses, the panel’s determination must be annulled and the matter remitted to Victim Services for a new hearing.

The court explained that "Regardless of the merits in a particular case, a party whose rights are being determined at a quasi-judicial administrative hearing must be given the opportunity to cross-examine witnesses," citing Matter of Seeger v Moduform, Inc., 146 AD2d at 923.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00958.htm