Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law
Source: Justia September 9, 2011

Liberty University, Inc., et al. v. Geithner, et al.

Court: U.S. 4th Circuit Court of Appeals

Docket: 10-2347

September 8, 2011

Judge: Motz

Areas of Law: Constitutional Law, Government & Administrative Law, Health Law, Tax Law

Plaintiffs brought this suit to enjoin, as unconstitutional, enforcement of two provisions of the recently-enacted Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119. The challenged provisions amended the Internal Revenue Code by adding: (1) a "penalty" payable to the Secretary of the Treasury by an individual taxpayer who failed to maintain adequate health insurance coverage and (2) an "assessable payment" payable to the Secretary of the Treasury by a "large employer" if at least on of its employees received a tax credit or government subsidy to offset payments for certain health-related expenses. The court held that because this suit constituted a pre-enforcement action seeking to restrain the assessment of a tax, the Anti-Injunction Act, 28 U.S.C. 2283, stripped the court of jurisdiction. Accordingly, the court vacated the judgment of the district court and remanded the case with instructions to dismiss for lack of jurisdiction.

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Commonwealth of Virginia v. Sebelius

Court: U.S. 4th Circuit Court of Appeals

Docket: 11-1058, 11-1057

September 8, 2011

Judge: Motz

Areas of Law: Constitutional Law, Government & Administrative Law, Health Law

The Commonwealth of Virginia brought suit against the Secretary of the Department of Health and Human Services, challenging one provision of the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119, as an unconstitutional exercise of congressional power. Virginia maintained that the conflict between this provision and a newly-enacted Virginia statute provided it with standing to pursue this action. The court held that Virginia, as the sole plaintiff here, lacked standing to bring this action because the challenged provision, the individual mandate, imposed no obligation on Virginia and the Virginia statute did not confer on Virginia a sovereign interest in challenging the individual mandate. Accordingly, the court vacated the judgment of the district court and remanded with instructions to dismiss the case for lack of subject-matter jurisdiction.

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Diaz, et al. v. Brewer, et al.

Court: U.S. 9th Circuit Court of Appeals

Docket: 10-16797

September 6, 2011

Judge: Schroeder

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Health Law, Insurance Law, Labor & Employment Law

The State of Arizona appealed the district court's order granting a preliminary injunction to prevent a state law from taking effect that would have terminated eligibility for healthcare benefits of state employees' same-sex partners. The district court found that plaintiffs demonstrated a likelihood of success on the merits because they showed that the law adversely affected a classification of employees on the basis of sexual orientation and did not further any of the state's claimed justifiable interests. The district court also found that plaintiffs had established a likelihood of irreparable harm in the event coverage for partners ceased. The court held that the district court's findings and conclusions were supported by the record and affirmed the judgment.

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Adams, et al. v. United States, et al.

Court: U.S. 9th Circuit Court of Appeals

Docket: 10-35592, 10-35611, 10-35458

September 8, 2011

Judge: Paez

Areas of Law: Agriculture Law, Environmental Law, Government & Administrative Law, Injury Law

Plaintiffs, 134 farmers whose crops suffered as a result of the federal Bureau of Land Management's (BLM) use of the herbicide Oust, sued the federal government and Oust's manufacturer (DuPont). Both the jury and the district court allocated 60% of the fault to DuPont and 40% to the federal government. Both the government and DuPont appealed: the court resolved the government's appeal in this opinion and DuPont's appeal in a memorandum disposition filed simultaneously with this opinion. The court held that it lacked subject mater jurisdiction over plaintiffs' Federal Tort Claims Act (FTCA), 28 U.S.C. 2402, claims because plaintiffs filed their lawsuit one day after the FTCA's statute of limitations had run. Therefore, the court held that the district court erred by not dismissing the claims against the federal government.

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Tarrant Regional Water Dist. v. Herrmann

Court: U.S. 10th Circuit Court of Appeals

Docket: 10-6184

September 7, 2011

Judge: Matheson

Areas of Law: Constitutional Law, Environmental Law, Government & Administrative Law, Government Contracts, Zoning, Planning & Land Use

Tarrant Regional Water District ("Tarrant"), a Texas state agency, applied to the Oklahoma Water Resources Board ("the OWRB") for permits to appropriate water at three locations in Oklahoma for use in Texas. Just before filing its applications, Tarrant sued the nine members of the Oklahoma Water Resources Board in the district court for the Western District of Oklahoma and sought a declaratory judgment to invalidate certain Oklahoma statutes that govern the appropriation and use of water and an injunction preventing OWRB from enforcing them. Tarrant alleged that the Oklahoma statutes restricted interstate commerce in water and thereby violated the dormant Commerce Clause as discriminatory or unduly burdensome. Tarrant further alleged that Congress did not authorize Oklahoma through the Red River Compact ("Compact") to enact such laws. OWRB responded that Congress did authorize Oklahoma to adopt these statutes by consenting to the Compact. Tarrant also claimed that the Compact preempted the Oklahoma statutes insofar as the Compact applied to Tarrant’s application to appropriate water located in the Red River Basin. The district court granted summary judgment for OWRB on both the dormant Commerce Clause and Supremacy Clause claims. After that decision, Tarrant took steps to export to Texas Oklahoma water that was not subject to the Compact. Tarrant negotiated a contract with property owners in Stephens County, Oklahoma to export groundwater to Texas and also entered a memorandum of understanding (MOU) with the Apache Tribe concerning the Tribe’s potential water rights. In court Tarrant then reasserted its dormant Commerce Clause challenge based on these transactions. The district court dismissed the Stephens County matter for lack of standing and the Apache Tribe matter as not ripe. Upon review, the Tenth Circuit affirmed the grants of summary judgment on the dormant Commerce Clause and preemption issues, and the dismissals based on standing and ripeness: [w]e hold that the Red River Compact insulates Oklahoma water statutes from dormant Commerce Clause challenge insofar as they apply to surface water subject to the Compact."

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Helm v. Kansas

Court: U.S. 10th Circuit Court of Appeals

Docket: 10-3092

September 7, 2011

Judge: Ebel

Areas of Law: Civil Rights, Government & Administrative Law, Injury Law

Plaintiff-Appellant Christie Helm appealed a district court’s order granting summary judgment in favor of the State of Kansas (the State) on her claim for sexual harassment under Title VII of the Civil Rights Act of 1964. Helm sued the State after she was allegedly sexually harassed over a period of almost ten years by Judge Frederick Stewart, a State district judge for whom Helm served as an administrative assistant. The district court determined that the State was entitled to summary judgment because Helm fell within the "personal staff" exemption to Title VII’s definition of "employee" and thus did not qualify for the protections afforded by the statute. Alternatively, the court ruled that summary judgment for the State was proper on the basis of the "Faragher/Ellerth" affirmative defense to employer liability for a supervisor’s sexual harassment of a subordinate. In September 1998, Helm was hired to fill an administrative-assistant position. Judge Stewart began sexually harassing Helm shortly after she was hired. Upon review of the trial court record, the Tenth Circuit held that the "Faragher/Ellerth" defense precluded vicarious liability against the State of Kansas for Judge Stewart’s alleged actions. Accordingly, the Court affirmed the judgment of the district court without reaching the question whether the "personal staff" exemption removed Helm from the purview of Title VII.

http://j.st/qWK

Rivera-Barrientos v. Holder, Jr.

Court: U.S. 10th Circuit Court of Appeals

Docket: 10-9527

September 7, 2011

Judge: Tymkovich

Areas of Law: Government & Administrative Law, Immigration Law

Minta del Carmen Rivera Barrientos suffered an attack at the hands of gang members in her native country of El Salvador. She escaped to the United States and sought asylum. She contended she was eligible for asylum under 8 U.S.C. 1158 because she faced past persecution on account of her political opinion (opposition to gangs) and her membership in a particular social group (young females) who have resisted gang recruitment. The BIA argued that the attack was not on account of her political opinion and that she was not a member of a cognizable social group. Because the Tenth Circuit concluded the BIA’s interpretation of the applicable statute was not unreasonable, the Court concluded the agency did not abuse its discretion in finding that Rivera-Barrientos was ineligible for asylum.

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City of Hugo v. Nichols

Court: U.S. 10th Circuit Court of Appeals

Docket: 10-7043

September 7, 2011

Judge: Murphy

Areas of Law: Constitutional Law, Environmental Law, Government & Administrative Law, Government Contracts, Zoning, Planning & Land Use

The City of Hugo, Oklahoma, and the Hugo Municipal Authority, a public water trust, (collectively "Hugo") contracted with the City of Irving, Texas, ("Irving") for the sale of water Hugo has been allocated or sought to be allocated under permits issued by the Oklahoma Water Resources Board ("Board"). Hugo and Irving brought suit against the nine members of the Board for a declaration that certain Oklahoma laws governing the Board’s water allocation decisions were unconstitutional under the dormant Commerce Clause and an injunction prohibiting their enforcement. The district court granted summary judgment for the Board, and Hugo and Irving appealed. Upon review, the Tenth Circuit concluded that Hugo, as a political subdivision of Oklahoma, lacked standing to sue the Board under the dormant Commerce Clause. Irving, whose injury was solely premised on a contract it entered into with Hugo, likewise could not demonstrate standing because any injury to Irving cannot be redressed. Concluding no plaintiff had the necessary standing, the Court vacated the district court’s order and remanded the case back the district court to dismiss for lack of federal jurisdiction.

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American Civil Liberties Union, et al. v. Dept. of Justice

Court: U.S. D.C. Circuit Court of Appeals

Docket: 10-5159

September 6, 2011

Judge: Garland

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law

Plaintiffs brought this action against the Department of Justice under the Freedom of Information Act, 5 U.S.C. 552, seeking to obtain documents relating to the government's use of cell phone location data in criminal prosecutions. The district court directed the release of certain specified documents and upheld the Department's decision to withhold others. The court affirmed the district court's order requiring the release of the specified documents. The court held, however, that because there were too many factual uncertainties regarding the remaining documents, the court vacated the balance of the district court's decision and remanded the case for further development of the record.

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Barnes v. Board of County Comm'rs

Court: Kansas Supreme Court

Docket: 99609

September 2, 2011

Judge: Biles

Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Tax Law

Property owners appealed a special tax assessment the Board of County Commissioners levied against real property for cleanup costs the County claimed it incurred while removing dangerous structures and unsightly conditions on that property. The district court found subject matter jurisdiction lacking and granted the County's summary judgment motion. The court of appeals affirmed. At issue on appeal was whether the property owners' claims could be brought on direct review under Kan. Stat. Ann. 60-907(a), which provides injunctive relief against an illegal levy or enforcement of any tax, charge, or assessment. The Supreme Court affirmed and in part and reversed in part, holding (1) the property owners satisfied the jurisdictional burdens under section 60-907(a) on two of its three issues; and (2) because the district court went beyond the jurisdiction question and found for the County on the merits and the court of appeals stopped short of considering the merits of any claims when it found the entire case was jurisdictionally barred, the court of appeals erred in part in its jurisdictional ruling. Remanded to the court of appeals to determine whether the district court properly granted summary judgment as to the remaining claims.

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Silver Dollar Liquor, LLC. v. Red River Parish Police Jury

Court: Louisiana Supreme Court

Docket: 2010-C-2776

September 7, 2011

Judge: Johnson

Areas of Law: Business Law, Government & Administrative Law, Zoning, Planning & Land Use

Plaintiff Silver Dollar Liquor, L.L.C. ("Silver Dollar") owns the Silver Dollar Liquor Store located within District 6 of Red River Parish. Silver Dollar filed a declaratory judgment action against Defendant Red River Parish Police Jury ("Police Jury"), seeking to have Section 3-18 declared invalid because there has never been a local option election in District 6 pursuant to La. R.S. 51:191. The Police Jury answered that it had authority under La. R.S. 26:493 to regulate the sale of alcoholic beverages. Relying on La. R.S. 26:493, the appellate court found in favor of the Police Jury, holding Section 3-18 to be valid. Finding the appellate court's decision created a split in the circuits, the Supreme Court granted Silver Dollar's certiorari application to resolve the split. Upon review, the Court surmised the heart of this case involved the interpretation and applicability of La. R.S. 51:191, which requires a local-option election in order to authorize a Sunday-closing law; and La. R.S. 26:493, which delegates to political subdivisions the power to regulate the sale of alcoholic beverages. After review, the Court affirmed the appellate court's decision.

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Hughes v. Hosemann

Court: Mississippi Supreme Court

Docket: 2010-CA-01949-SCT

September 8, 2011

Judge: Pierce

Areas of Law: Constitutional Law, Election Law, Government & Administrative Law

In November 2008, P. Leslie Riley and an organization known as "Personhood Mississippi" filed an initiative, now known as Measure 26, with the Office of the Secretary of State. The initiative was qualified by the Secretary of the State to be placed on the general election ballot. Thereafter, Deborah Hughes and Cristen Hemmins ("Plaintiffs") filed a complaint for declaratory and injunctive relief in Hinds County Circuit Court against Secretary of State Delbert Hosemann, challenging Measure 26 as a violation of Article 15, Section 273(5)(a) of the Mississippi Constitution. On August 10, 2010, Plaintiffs filed a motion for judgment on the pleadings. The Secretary of State replied with a response to that motion. Then, on September 30, 2010, the trial court entered and approved an Agreed Order, allowing Riley and Personhood Mississippi to intervene. In that same order, all parties agreed that this case was "based on questions of law" and "should be resolved by way of judgment on the pleadings." Subsequently, after considering the motion and responses, having heard oral argument, and being otherwise fully advised in these matters, the trial court denied Plaintiffs' motion for judgment on the pleadings, finding that they had not carried their heavy burden in attempting to restrict the citizenry's right to amend the Constitution. Thereafter, the trial court entered an additional order, titled "Final Judgment." The trial court ruled that the denial of Plaintiffs' motion for judgment on the pleadings disposed of the case. Additionally, the trial court ruled that "final judgment is hereby entered in favor of the" Secretary of State and the Intervenors. Upon review, the Supreme Court concluded Measure 26 was not ripe for review. Thus, the Court vacated the trial court's final judgment in favor of Intervenors and Secretary Hosemann. The Supreme Court finally dismissed Plaintiffs' complaint without prejudice.

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Speed v. Hosemann

Court: Mississippi Supreme Court

Docket: 2011-CA-01106-SCT

September 8, 2011

Judge: Lamar

Areas of Law: Constitutional Law, Election Law, Government & Administrative Law

David Waide filed an Initiative with Mississippi Secretary of State Delbert Hosemann, and Hosemann approved it for placement on the November, 2011 general election ballot. Plaintiff Leland Speed filed a complaint against Hosemann in the Hinds County Circuit Court, along with a Motion for Expedited Declaratory and Injunctive Relief, asking the Supreme Court to declare Initiative 31 unconstitutional and to enjoin Hosemann from placing it on the ballot. Speed argued that Initiative 31 "violates Section 273(5)(a) because that section prohibits use of the initiative process for the proposal, modification or repeal' of any portion' of the Constitution's Bill of Rights." Speed argued that Initiative 31 was a "proposal, modification or repeal' of the Bill of Rights . . . and more specifically of its Section 17, which governs taking of private property for a public use." After Hosemann and Waide responded to Speed's pleadings, Speed filed a Motion for Judgment on the Pleadings, in which he argued that the case "involve[d] a pure issue of law with no material facts in dispute" and asked the court to enter judgment in his favor under Mississippi Rule of Civil Procedure 12(c). The trial judge both denied Speed's motion for judgment on the pleadings and ruled on the merits, finding that Speed's complaint should be dismissed with prejudice and ordering that Hosemann be allowed to proceed in placing Initiative 31 on the ballot. On appeal, Speed asked the Supreme Court to reverse the trial judge, declare that Initiative 31 violates Section 273(5) of the Mississippi Constitution, and "keep Initiative 31 off the November ballot." Upon review, the Supreme Court found that the issue presented in this appeal (the constitutionality of proposed Initiative 31) was not ripe for adjudication by the Court, such that any opinion thereon would be improperly advisory. Accordingly, the Court vacated the trial court's decision and dismissed the case.

http://j.st/qho

City of Jackson v. Doe

Court: Mississippi Supreme Court

Docket: 2010-IA-00341-SCT, 2010-IA-00342-SCT

September 8, 2011

Judge: Dickinson

Areas of Law: Criminal Law, Government & Administrative Law, Injury Law

In July 2001, eight-year-old Jane Doe and thirteen-year-old Lisa Roe were playing unsupervised at the Presidential Hills Park, a public park built, operated, and maintained by the City of Jackson (the City). While playing in the park, the two children were approached by Andrew Lawson, a convicted sex offender, who fondled Lisa Roe and sexually battered Jane Doe. Lawson was convicted for his criminal acts against the girls. Two girls sued the City. The City moved for summary judgment, arguing that it was immune from suit. The trial court denied the motion. Because the City's operation of the park was a discretionary function, the Supreme Court granted the City's petition for interlocutory appeal and reversed the trial court and rendered judgment for the City.

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State ex rel. Julnes v. S. Euclid City Council

Court: Ohio Supreme Court

Docket: 20111387

September 7, 2011

Judge: Per Curiam

Areas of Law: Government & Administrative Law, Zoning, Planning & Land Use

The South Euclid City Council enacted an ordinance that amended the zoning for certain property. Relators, city residents, filed a referendum petition seeking submission of the ordinance to the city's electorate. The city council denied the petition because Relators had not filed a certified copy of the ordinance with the city's finance director. Relators then filed the present action, seeking a writ of mandamus to compel the city council clerk to determine the referendum petition was valid, to compel the clerk to communicate that determination to the city council, and to compel the city council to repeal the ordinance or submit it to the electors. The Supreme Court granted the writ, holding that Relators established their entitlement to the requested relief as (1) the clerk of council and city council abused their discretion and disregarded Ohio Rev. Code 731.32 by determining that Relators had not complied with the statute by filing a copy of the ordinance with the clerk of council instead of the city's director of finance; and (2) the ordinance was not exempt from referendum even though it contained an emergency declaration.

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Wilson v. Fallin

Court: Oklahoma Supreme Court

Docket: 109652

September 1, 2011

Judge: Taylor

Areas of Law: Constitutional Law, Election Law, Government & Administrative Law

Petitioner State Senator Jim Wilson sought review of the State Senate Redistricting Act of 2011, pursuant to Section 11C, Article V of the Oklahoma Constitution. Petitioner alleged the Act does not comply with the apportionment formula in Section 9A, Article V of the Oklahoma Constitution. Specifically, Petitioner alleged the Act does not pass constitutional muster because it "fails to create Senate districts which as nearly as possible provide for compactness, political units, historical precedents, economic and political interests." Senator Wilson did not explicitly identify every district in the Redistricting Act that he contended was not in compliance with Section 9A but claimed that he identified such districts by the maps provided in the appendix of his petition. Upon review of the arguments submitted by the parties, the Supreme Court found that Petitioner failed to show that the State Senate Redistricting Act of 2011 does not comply with the provisions of Section 9A of the Oklahoma Constitution.

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Alto Township v. Mendenhall

Court: South Dakota Supreme Court

Docket: 25933-r-GAS

September 7, 2011

Judge: Severson

Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use

Appellants, ranchers, owned property in Alto Township separated by a section-line highway. Appellants historically fenced across the highway to join the adjacent pastures and installed gates at the highway. The township requested an injunction requiring Appellants to remove the fences that extended across the highway. Meanwhile, the county board of commissioners passed a resolution authorizing Appellants to erect and maintain fences across the section-line highway if the fences and gates met certain criteria. The trial court then enjoined Appellants from erecting and maintaining fences or gates across the highway unless they met the criteria of the resolution. After Appellants installed cattle guards and gates, the township brought a motion for contempt citation against Appellants, alleging they willfully and contumaciously failed to comply with the trial court's order. The county board of commissioners subsequently determined Appellants had complied with the resolution. The trial court found Appellants in contempt of court. The Supreme Court reversed, holding that the trial court's finding of contempt was clearly erroneous because a reasonable person could conclude that Appellants complied with the trial court's order.

http://j.st/q7i

Code of ethics bars county board member from representing a not-for-profit corporation

Code of ethics bars county board member from representing a not-for-profit corporation
Neale v Cohen, 281 AD2d 421

Attorney J. Henry Neale, Jr. was appointed as a member of the Westchester County Parks, Recreation, and Conservation Board [WCPB].

While serving on the WCPB, he, acting in the capacity of an attorney in private practice, filed a lawsuit against Westchester County as the legal representative of a not-for-profit corporation.

The Westchester County Ethics Board considered the situation and issued an advisory opinion, without mentioning Neale by name, stating that such conduct was in violation of the Westchester County Code of Ethics.

The Deputy County Executive suspended Neale from his position as a member of the WCPB pending a final determination by the County Executive. Neale subsequently resigned his membership on the WCPB, indicating that he had received a job offer, which might interfere with his position with WCPB.

The Appellate Division affirmed the dismissal of his lawsuit challenging his suspension for two reasons:

1.The Ethics Board did not make a final determination but rather issued an advisory opinion without mentioning Neale's name; and

2.Any claim against the Deputy County Executive based on the Evans's suspension and the institution of removal proceedings against him was rendered academic upon his resigning from the WCPB.

Recovering overpayments of General Municipal Law Section 207-c benefits

Recovering overpayments of General Municipal Law Section 207-c benefits
Westchester County v Westchester County Correction Officers Benevolent Assoc., App. Div., Second Dept., 278 AD2d 414

Westchester County initially provided General Municipal Law Section 207-c benefits to three corrections officers. Subsequently it was determined that the injuries suffered by the correction officers were not work-related.

When the County attempted to recover the Section 207-c “overpayments” it had made to the officers, the Westchester County Correction Officers Benevolent Association, Inc., [COBA] filed a grievance seeking to arbitrate the County's action and bar the County from commencing any actions to recover disability benefits paid to the officers.

The County said that it provided Section 207-c benefits to three correction officers pending the results of hearings scheduled to determine the officers' entitlement to such benefits. The results of the hearings: the three officers had not suffered work-related injuries and, therefore, the three were not eligible for any Section 207-c benefits.

In rejecting COBA's demand that the question of recovering the “overpayments” be submitted to arbitration, the Appellate Division said that since the County's authority to make initial determinations of entitlement to Section 207-c benefits was not a mandatory subject of collective bargaining, the County's right to recover benefits it paid to officers who did not suffer a work-related injuries was also not a mandatory subject of collective bargaining.

Noting that both Section 207-c and the County/COBA collective bargaining agreement are silent as to whether the County may commence an action to recover Section 207-c benefits improperly paid, the court ruled that “the agreement should not be construed so as to expand the officers' rights under the statute.”

The court also commented that there is a strong public policy in favor of recovering moneys improperly or illegally paid out and “[f]or this reason as well, arbitration is not available.”

Removal from public office

Removal from public office
Capobianco v Village of Massapequa Park, 278 AD2d 268

Village of Massapequa Park village administrator Meredeth Capobianco sued the Village claiming she had been subjected to a “wrongful discharge” from her position.

As it turned out, what proved critical to her claim was a resolution adopted by the Village providing that the “Village Clerk-Treasurer shall be the Village Administrator and shall serve in such capacity at the pleasure of the Board of Trustees”.

On April 5, 1999, Capobianco was appointed as Village Administrator to serve for a two-year term. The Village terminated her employment effective August 25, 1999.

Capobianco sued, contending that she was “wrongfully removed from office as the Village Administrator, Clerk-Treasurer in violation of Public Officers Law Section 36.

The Village, on the other hand, asked the court to dismiss her petition, arguing that Capobianco was an at-will employee rather than a village officer, and, therefore, Section 36 was not applicable in her situation. A State Supreme Court judge agreed with the Village and dismissed Capobianco's petition.

The Appellate Division agreed with Capobianco, reversing the lower court's decision. It said that the record demonstrated that Capobianco the Village Clerk-Treasurer and thus a Village officer within the meaning of Section 3-301[1] of the Village Law. The court pointed out that “the Village's own resolution provided that the Village Clerk-Treasurer was the Village Administrator.”

Because Capobianco was a village officer, she could only be removed from office in accordance with the procedure set forth in Public Officers Law Section 36, despite the provision in the resolution that she was to serve at the pleasure of the Board of Trustees.

Since Massapequa Park failed to provide Capobianco with the required pre-termination hearing, the court said that she was “entitled to remain in office unless and until removed in accordance with Public Officers Law Section 36,” citing Sullivan v Taylor, 279 NY 364.

As to the relevant statute, the decision indicates that Public Officers Law Section 36 provides, in part, that:

A Village officer “may be removed from office by the Supreme Court for any misconduct ... An application for such removal may be made by any citizen resident of such ... village ... or by the district attorney of the county in which such ... village ... is located, and shall be made to the Appellate Division .... Such application shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice”.

Settlement of disciplinary charges

Settlement of disciplinary charges
Ivory v NYS Dept. of Civil Service, NYS Supreme Court, [Not selected for publication in the Official Reports]

Often the employer and the employee will agree to settle a disciplinary action on mutually acceptable terms rather than proceed with an administrative hearing or submit the matter to arbitration. One of the issues in the Ivory case concerned an administrative “settlement” of a proposed disciplinary action. As the decision notes, courts will not vacate such types of agreements lightly when entered into knowingly and in good faith.

Ivory was employed as a secretary by State University of New York Maritime College for about 10 years. On April 15, 1999, the College Ivory told that she would be charged with misconduct that could lead to her termination. The college had alleged that Ivory's “work performance was poor, that she had unauthorized absences from work, and that she threatened the Personnel Director at the College.”

Ultimately, Ivory and the College agreed to resolve the matter administratively and on June 21, 1999, the parties entered into a “stipulation of settlement.” They mutually agreed that, “in return for the [College's] removal of grievances and a notice of discipline from her official file, [Ivory] would be laid off from her position at the College.”

Ivory later filed a number of race and disability discrimination charges with the Equal Employment Opportunities Commission [EEOC]. EEOC dismissed her charges finding that “it was unable to conclude that the information obtained established violations of any of the relevant statutes.”

Ivory also sued the College and the New York State Civil Service Commission in State court. One of her motions asked the court to void the June 21, 1999 settlement agreement.

The court, declined to do so, stating that the settlement agreement, describing the terms of a settlement between plaintiff and the College, was duly executed by plaintiff, her representative, and her employer's representative. In the words of the court, “[s]tipulations of settlement are favored by the courts and not lightly cast aside,” citing Hallock v State of New York, 64 NY2d 224.

Proving retaliation for engaging in protected union activities

Proving retaliation for engaging in protected union activities
Rockville Centre Teachers Asso. v PERB, 281 AD2d 425

A Public Employment Relations Board [PERB] Administrative Law Judge [ALJ] ruled that the Rockville Centre Union Free School District had dismissed an employee in retaliation for her union activity -- an unfair labor practice under the Taylor Law. PERB reversed its ALJ's determination and the Rockville Teachers Association appealed PERB's decision.

The Appellate Division first noted that the employee involved was serving a probationary period and that a probationary employee could be terminated for any reason as long as the termination was not made in bad faith, constituted a violation of statutory or decisional law, or was for unconstitutional or illegal reasons.

As the Association contended that school district had terminated the employee because of her protected union activity, it had the burden of proving each of the following elements in order to prevail before PERB:

1. That the employee was engaged in protected activity;

2. That such activity was known to the person making the adverse employment decision; and

3. That the action would not have been taken but for the protected activity.

The court said that in order to annul an administrative determination rendered after a hearing, a court must find that the record lacks substantial evidence to support the administrative determination.

The Appellate Division said that there was substantial evidence in this record to support PERB's determination that the Association failed to sustain its burden of proof in meeting the third prong of test -- the so-called “but for” test -- in view of the evidence presented by the district to support its decision to terminate the employee.

What was the district's proof? The court said that the school district introduced evidence that the employee had “failed to follow proper school procedures, failed to follow instructions, and failed to adequately safeguard the safety of a student who subsequently fell down a flight of stairs.”

This, in the view of the court, provided sufficient reasons to justify the district's terminating the individual's probationary employment and thus permitting PERB to conclude that the Association failed to meet the “but for” test.

Significantly, the Appellate Division said that “there is no evidence to establish a nexus between the employee's union activity and the decision to terminate her employment.” In other words, the probationary employee would have been terminated even if she had not engaged in a protected activity.

The Appellate Division also considered the question of the deference due findings by an ALJ by PERB.

The opinion states that although the findings of an ALJ made after a hearing are entitled to deference upon review by an administrative board such as PERB, a board is entitled to make its own findings provided that they are supported by substantial evidence.

In this instance the Appellate Division found that PERB's substituting its own finding for those of its ALJ was supported by substantial evidence in the record.

Responsibility for granting tenure may not be surrendered

Responsibility for granting tenure may not be surrendered
Croman v City University of New York, App. Div., First Dept., 277 AD2d 185

It is well settled that as a matter of public policy an appointing authority such as a board of education may not surrender its ultimate responsibility for making tenure decisions or restrict its exclusive right to terminate a probationary employee's appointment and thus such the denial of tenure is not subject to grievance arbitration.

The Court of Appeals, by way of illustration, observed that “... a board of education may not surrender its ultimate responsibility for making tenure decisions or restricting its exclusive right to terminate probationary teacher appointments” and thus such the denial of tenure is not subject to grievance arbitration.

In contrast, in Cohoes City School District v Cohoes Teachers Association, 40 NY2d 774, the Court of Appeals ruled that contractual provisions between an employee association and an appointing authority may set out procedural safeguards concerning the tenure decision that are subject to grievance arbitration procedures without offending public policy.

In other words, while a board's decision involving the “denial of tenure” is not arbitrable, alleged violations of the procedures to be followed in determining whether to grant or deny tenure are arbitrable.

Does public policy prohibit the arbitration of the disciplinary termination of tenured faculty?

This was the issue raised by Linda H. Young, a tenured faculty member, when she challenged her suspension without pay for six months from her position with the City University of New York by an arbitrator following a disciplinary hearing held in accordance with the provisions of a Taylor Law agreement.

Young's argument As Section 6212(9) of the Education Law “vests the power to remove tenured faculty solely in [University's] Board of Trustees,” public policy is violated by a collective bargaining agreement delegating the authority to discipline to an arbitrator at the employee's option

The Appellate Division, First Department, disagreed. The court said that “[a]bsent clear language in Education Law Section 6212(9) '[i]t is well settled that a contract provision in a collective bargaining agreement may modify, supplement or replace the more traditional forms of protection afforded public employees ...'”, citing Dye v New York City Transit Authority, 88 AD2d 899.

According to the ruling, the collective bargaining agreement allowed Young to either accept the disciplinary penalty recommended by appointing authority's designee or take the matter to arbitration. Young elected arbitration.

The Appellate Division dismissed Young's appeal, commenting that “[p]ublic policy does not nullify the choice she made.”

The leading cases addressing the issue of an individual’s electing a “negotiated disciplinary procedures” rather than an available statutory disciplinary procedure such as that provided by §75 of the Civil Service Law: Antinore v State of New York, 40 NY2d 6 and Abramovich v Board of Education, 46 NY2d 450.

Determining line-of-duty disability

Determining line-of-duty disability
Ertner v Chenango County, 280 AD2d 851

In considering the standard to apply in determining line-of-duty disability for the purpose of demonstrating eligibility for Section 207-c benefits, in the Ertner case, the Appellate Division, Third Department said that:

While it would be virtually impossible to enumerate each and every instance in which an employee would be entitled to General Municipal Law Section 207-c benefits as opposed to workers' compensation benefits (and such determinations must, of necessity, be made on an ad hoc basis), two rather classic examples come to mind: a police officer injured while pursuing a fleeing felon and a correction officer injured while attempting to quell a prison riot.

At the opposite end of that spectrum is a case such as this. It can hardly be said that an injury incurred while a correction officer is going up or down stairs at his or her place of employment is one incurred as the result of a heightened risk peculiar to the performance of the duties of such an officer.

Applying this analysis to the claim for Section 207-c benefits filed by Chenango County correction officer Tammy Ertner, the Appellate Division sustained the County's determination that Ertner was not injured “during the performance [of] a job function peculiar to a correction officer.”

Ertner was disabled as a result of her falling while going downstairs to inspect the first-floor cells of the jail, having just completed such an inspection of the second floor. She applied for and was awarded workers' compensation benefits. Ertner then applied for Section 207-c benefits.

Ertner's application was rejected on the basis that her injury was not “incurred during the performance [of] a job function peculiar to a correction officer” and she appealed the determination.

Noting that in Balcerak v County of Nassau, 94 NY2d 253, the Court of Appeals has ruled that entitlement to benefits under the Workers' Compensation Law and Section 207-c are discrete and entirely independent of one another, the Appellate Division dismissed Ertner's appeal.

The court pointed out that workers' compensation benefits are provided for injuries incurred in the course of ordinary and otherwise unqualified employment duties. In contrast, Section 207-c [and Section 207-a] benefits are provided to “compensate specified municipal employees for injuries incurred in the performance of ... work” peculiar to their specialized employment.

In contrast, in another recent case, Flannelly v NYC Police Pension Fund, decided December 19, 2000, the Appellate Division, First Department, ruled that tripping and falling over a tangle of television and VCR wires in the women's locker room of the police station where she worked, while performing a routine security inspection was, as a matter of law, a service-related accident entitling New York City police officer Diane Flannelly to an accident disability pension.

The court said that the wires were in an unexpected location at the entrance of the locker room, a situation that had been recently created by painters who, unknown to Flannelly or anyone else in the police station, had moved the television and VCR and unplugged their wires.

Disciplinary suspension without pay

Disciplinary suspension without pay
Wachtmeister v Andrus, 279 A.D.2d 82

Clearly an employee against whom disciplinary charges have been filed pursuant to Section 75 of the Civil Service Law may be suspended without for up to thirty days pending a resolution of the disciplinary action. If the final determination is not made on or before the thirtieth day, the individual must be restored to the payroll.

In Margaret Wachtmeiser's case, the Clinton County Director of Public Health, John V. Andrus, followed the procedure set out in Section 75. Charges were filed against Wachtmeister on January 27, 1998 and she was suspended without pay for 30 days in accordance with Section 75(3) of the Civil Service Law. She was restored to the payroll on February 26, 1998.

On April 2, 1998, however, Wachtmeister was again removed from the payroll, this time in accordance with the terms of her signed “release.” The release provided that Wachtmeister agreed to be removed from the Department's payroll pending a final determination of the disciplinary proceeding in exchange for an adjournment of her scheduled hearing.

As the Wachtmeister decision demonstrates, the employer may remove an individual from the payroll pending a final determination of disciplinary charges in the event the employee elects to postpone the hearing.

In contrast, if the appointing authority seeks to postpone the hearing, it could not condition the adjournment on the removal of the employee from the payroll.

Wachtmeister, a public health nurse, was charged with, and found guilty of, numerous specifications of misconduct in connection with her performance of her duties. Andrus adopted the hearing officer's findings and imposed the penalty recommended: termination. After being dismissed from her position, Wachtmeister sued for her back pay for the period she was suspended without pay in excess of thirty days.

The Appellate Division rejected Wachtmeister claim for back pay for this period as she had been removed from the payroll consistent with the terms of the “release.” It had no difficulty with concept of suspending the employee without pay under such circumstances.

The court also rejected Wachtmeister's appeal in which she claimed that she was coerced into executing the release, finding that the record fails to substantiate her conclusory allegation on this point.

Further, the court rejected Wachtmeister's contention that the hearing officer's finding were not supported by substantial evidence, commenting that the record contained testimony provided “painstaking detail regarding each of the specifications of misconduct set forth in charges 1 through 5 [when] coupled with the voluminous documentary evidence [in the record] ... provides overwhelming evidence of [Wachtmeister's] misconduct.”

Qualifying for appointment to a position

Qualifying for appointment to a position
Thorsen v Nassau County Civil Service Commission, NYS Supreme Court, [Not selected for publication in the Official Reports]

The Thorsen decision set out the proposition that a Civil Service Commission will be bound by its determination concerning the duties that are properly performed by the incumbent of any given title. This could be significant if its subsequent rulings are inconsistent with its earlier decision concerning the duties of the position in question as the Thorsen decision demonstrates.

George C. Thorsen was appointed to the non-competitive position of Assistant to the Director of Probation of the Nassau County Department of Probation on May 10, 1996 following a series of promotions within the Nassau County Department of Probation.

In 1997, while Thorsen was serving as Assistant to the Director of Probation, the position was reallocated two grades higher based on his performing duties that “encompasses both the areas of law enforcement management, administration, liaison, planning and research.” 

The Nassau County Civil Service Commission was notified of the reallocation and voiced no objection to the change in either the duties of the position nor the salary grade -- two grades higher -- to which the position was reallocated.

As to the authority of a municipal civil service commission in this area, Section 20.1 of the Civil Service Law provides that such a commission “shall prescribe, amend and enforce suitable rules ... including rules for the jurisdictional classification of the offices and employments in the classified service under its jurisdiction, [and] for the position classification of such offices and employments....” 

Section 2.11 of the Civil Service Law defines the term “position classification” to mean “a grouping together, under common and descriptive titles ... and scope of their duties and responsibilities and in the qualification requirements therefore;”

A municipal commission, however, does not have statutory authority to allocate positions subject to its jurisdiction to a salary grade as Section 20.1 also provides that “[n]othing in this chapter ... shall be construed to require that ... the salary grade to which a position in any jurisdictional class is allocated be specified in such rules.”

In August of 1999 the noncompetitive class position of Nassau County Director of Probation became vacant. The Nassau County Executive, Thomas Gulotta, nominated Thorsen for permanent appointment to the Director vacancy and certified his name to the Commission for approval.

The Commission disapproved the appointment on the grounds that Thorsen “lacked managerial experience” and was therefore unqualified for the position. Thorsen's appeal was rejected by the Commission on the grounds that Thorsen “does not posses the five years of managerial experience required for the [Director] position.”

The Commission's rationale:

The defined duties of the title “Assistant to the Director of Probation” do not include the defined managerial experience set forth in the training and experience requirements of the title “Director of Probation”.

State Supreme Court Justice Bruce D. Alpert decided that the Commission's position “is untenable in light of its failure to challenge the 1997 upgrade of [Thorsen's] position as Assistant to the Director of Probation which delineated the position's attendant defined duties and justification.”

By failing to challenge the upgrade, said the court, the Commission “tacitly recognized that the position of Assistant to the Director of Probation encompassed the areas of law enforcement management, administration, liaison planning and research in the administration of the Probation Department. Accordingly, it cannot now, in good faith, argue that [Thorsen's] managerial responsibilities and experience as set forth hereinabove were accomplished “out-of-title”, as that term is defined in Civil Service Law Section 61.2.”

Justice Alpert ruled that the Commission's determination that Thorsen was not qualified for appointment to the position of Director of Probation due to a purported lack of sufficient managerial experience was “without justification, factual predicate or sound basis in reason, and, thus, was both arbitrary and capricious.” The remedy: Justice Alpert directed the Commission to process Thorsen's application for appointment to the Director position.

Performing light duty may impact on eligibility for disability retirement

Performing light duty may impact on eligibility for disability retirement
Perez-Dunham v McCall, 279 AD2d 884

In June 1996, police officer Magarita Perez-Dunham applied for performance of duty disability retirement benefits based upon an injury sustained in November 1993.

The application was rejected on the ground that although Perez-Dunham's disability prevented her from performing the full duties of a police officer, she was not disabled from performing the light duties that she had been performing for more than two years prior to her application.

The Appellate Division pointed out that in the event an applicant for disability retirement benefits is serving in a light-duty assignment, the application must be determined on the basis of the applicant's ability to perform a full-duty assignment unless the applicant has served in a light-duty assignment for two years or more prior to the date on which the application was filed.

If the applicant has performed light duty for two or more years, his or her application must be reviewed on the basis of his or her ability to perform the light-duty assignment.

The Appellate Division ruled that the testimony of the police surgeon that Perez-Dunham was assigned to light duty following her injury provided substantial evidence to support the conclusion that she performed light duties for more than two years prior to her filing her application. While the surgeon conceded that petitioner might have returned to full duty briefly, this was consistent with Perez-Dunham testimony that before being assigned to light duty, she returned to full duty for about six months.

Finding that Perez-Dunham had been assigned and performed light duty for two or more years, the Appellate Division dismissed her appeal from the Comptroller's determination.

Enforcing a PERB order

Enforcing a PERB order
PERB v Westchester County, 280 A.D.2d 849

The Westchester County decision addresses a somewhat rare situation -- a party's claim that it is unable to comply with a PERB order on the grounds of impossibility.

The Public Employment Relations Board [PERB] concluded that Westchester County committed an improper employer practice -- subcontracting nursing services to a private entity. PERB ordered “the unlawfully terminated nurses be restored to the status quo ante and paid lost compensation.”

Westchester did not appeal PERB's ruling within the 30-day limitations period set out in Section 213 of the Civil Service Law. Neither did it take any action to comply with PERB's order. PERB eventually initiated legal action against Westchester seeking a court order enforcing its order.

Westchester asked the court to dismiss PERB's petition, contending that PERB's order was unenforceable “because the facility employing the nurses was removed from [Westchester's] control and replaced by a public benefit corporation.”

The Appellate Division sustained a State Supreme Court's dismissal of Westchester's motion, pointing out that in cases where PERB initiates an enforcement action after the expiration of the 30-day window for review of the merits of a final agency determination, courts are not at liberty to consider “either the determinative or the remedial provisions of the PERB orders.”

Thus, said the court, a party's ability to comply with a PERB order is irrelevant in an enforcement proceeding.

According to the Appellate Division's decision, a party's ability to comply with a PERB order is immaterial to a court's consideration of an enforcement petition, as the facts surrounding a party's failure or inability to comply with the order is a subject to be addressed not during the enforcement proceeding, but during a subsequent contempt proceeding, should one be initiated.

Independent contractors

Independent contractors
Viniotis v Town of Islip, 280 A.D.2d 731

Designating an individual an “independent contractor” does not automatically result in such status as the Town of Islip discovered in the Viniotis case.

Mary C. Viniotis signed a contract with the Town that stated that she was an independent contractor engaged to provide part-time housekeeping services under the Town's expanded in-home services program for its elderly residents.

Viniotis was paid at an hourly rate and submitted “requisition forms” supplied by Islip for the payment of her compensation. The Town set her work schedule and designated the chores to be done for the clients.

The court commented that Viniotis was given a written evaluation of her performance every three months and was issued an identification card indicating that she was a Town employee. Also noted was the fact that Viniotis was required her to take her “mandatory vacation as directed by the Town.”

The Appellate Division sustained the Unemployment Insurance Appeal Board's ruling Viniotis and others “similarly situate” were Town employees and that Islip had to pay unemployment insurance contributions based upon the compensation it paid to these home care providers.

The court, in effect, decided that under the facts of this case, the Town could not disclaim these individuals as town employees simply on the basis of a signed a contract indicating that they served as independent contractors.

As Islip's home care providers are not independent contractors, it appears that the positions must now be classified and appointments made consistent with the controlling provisions of the Civil Service Law. 

N.B. A new position in the Classified Service is automatically in the competitive class unless placed in a different jurisidictional classification by law or by actions of the responsible Civil Service Commission.

Extending work-hour assignment

Extending work-hour assignment
Mt. Vernon PBA v City of Mt. Vernon, App. Div., Second Dept., 279 A.D.2d 561

The Appellate Division ruled that Mt. Vernon violated Section 971(a) of the Unconsolidated Laws when it required members of the City of Mount Vernon Police Department to work more than one eight-hour shift in a consecutive 24-hour period when there was no emergency situation within the meaning of the statute to justify such assignments.

Filing a timely administrative appeal

Filing a timely administrative appeal

Matter of Friedman v New York State Div. of Human Rights, 2011 NY Slip Op 32313(U), Supreme Court, New York County, Docket Number: 104301/11, Judge: Donna M. Mills [Not selected for publication in the Official Reports]

In this special proceeding Moshe Friedman challenged the dismissal of his complaint of alleged unlawful discrimination by the New York State Division of Human Rights (DHR). Friedman had charged that his former employer’s decision to terminate his employment was based on age, creed and gender in violation of the New York State Human Rights Law, Executive Law §296. The Division had dismissed the complaint after finding that it had been “untimely filed.”

Executive Law §297 sets out the procedures for the filing and resolution of complaints of unlawful discrimination by the DHR and prescribes the time period within which an aggrieved party must file a verified complaint in writing, e.g., “…within one year after the alleged unlawful discriminatory practice.”

Friedman contended that the “date of filing” should be the date his complaint was notarized or postmarked, which date would have otherwise been timely*. DHR, on the other hand, said that the date on which it received Friedman’s complaint controlled and it did not receive it until four days after the one-year period for filing such complaints ended.

Judge Mills ruled that New York courts construed this one-year limitations period as mandatory and thus Friedman failed to comply with this mandate, citing Bd.of Educ. of Farmingdale Union School Dist.v New York State Div. of Human Rights, 56 NY2d 257 in support of its ruling.** In the words of the court, Friedman did not meet the time limitation set out in Executive Law §297, “which must be strictly construed” as there is nothing in the statute or its implementing regulation indicating that the timely mailing of an application or a hearing is sufficient. Thus “the timeliness of such a filing must be measured by the date it was [received by] DHR rather than the date it was mailed.”

Accordingly, said Judge Mills, Friedman’s complaint which was received four days after the one-year limitations period expired, was untimely.

In McLaughlin v Saga Corporation, 657 NYS2d 784, a case involving an appeal filed with the Workers' Compensation Appeals Board [WCB], the Appellate Division initially took the position that a notice of appeal is untimely if it physically received by the appellate body after the Statute of Limitations had passed.

In Saga's case, although the appeal was mailed within the 30-day period allowed for filing the application, WCB did not physically receive it until eight days after the statute of limitations had expired. When Sega asked for permission to appeal its rule, the Appellate Division elected to reconsider its decision. It then reversed its initial ruling, holding that it is the date of mailing, rather than the date of receipt, that controls in determining the timeliness of an administrative appeal.

The rationale underlying the revised ruling: If a person has a statutory right to make a decision, which may be then filed by mail, this period would necessarily be shortened if the appellate body could insist that it physically receive the mailed notice no later than the last day of the period of limitation. In effect the Court concluded that the method of service of a notice of appeal, mail or personal delivery, should not determine the time period available to the party to decided whether or not to appeal an administrative ruling.

On occasion law, rule and regulation set out the criteria regarding “timely fillings.” For example, Chapter 245 of the Laws of 1992 provided that the timely mailing of an application to qualify for service credit or benefits by the deadline date established is sufficient to meet a deadline, provided mailing is actually received by New York State Teachers' Retirement System. If, however, the System never "actually received" the application, the court would probably have required that the applicant submit "proof of mailing within the limitations period" in order to have the filing declared timely. Accordingly, it would be prudent to send appeals filed using the U.S. Postal Service by certified or registered mail, "return receipt request" notwithstanding the provisions of Chapter 245 type provision to the contrary.

* N.B. In such cases both the execution of the required notarization and the physical mailing must be timely.

** See, also, City of Cortland v White, 114 A.D.2d 64. In Cortland the Appellate Division, 3rd Department, ruled that an appeal from a determination of the Commissioner of Human Rights must have been actually received by the court, in contrast to having merely been mailed on or before the last day on which it may be filed to be timely. Although the Cortland claimed that it had mailed its petition to the court within the 60-day time limit permitted, the Appellate Division ruled that it was the date of receipt, not the date of the mailing, which controlled in determining if an appeal is timely filed. Although the Human Rights Law is silent as to the manner and effective date of commencing an appeal from a determination by the Commissioner of Human Rights (or a DHR regional director), the Appellate Division noted the "considerable body of precedential law" in support of its ruling, citing People v Dimmie, 15 NY2d 578.

Seeking an alternate remedy may not stay the running of Article 78's statute of limitations

Seeking an alternate remedy may not stay the running of Article 78's statute of limitations
Brignoni v Abramson, 278 AD2d 565

Critical to consideration of any grievance or lawsuit is that the complaint be timely filed, typically referred to as satisfying the statute of limitations. The Brignoni case demonstrates the importance of a timely filing of any such actions.

New York State correction officer Obdulio Brignoni, Jr. held a temporary appointment as a correction sergeant. He later learned that it was unlikely that he would ever be given a permanent position of correction sergeant.

The union, Law Enforcement Officers Union, District Council 82, [DC-82] sued the Department of Correctional Services [DOCS] on behalf of Brignoni and other “temporary sergeants,” contending that such temporary appointments were unlawful, unconstitutional and an abuse of discretion.

Initially DOCS offered to settle the action on terms that would have resulted in Brignoni being given a permanent appointment. DC-82, however, rejected the offer. Ultimately, DC-82 and DOCS settled the lawsuit. The terms of the settlement “excluded” Brignoni and he did not receive a permanent appointment as a correction sergeant.

While the settlement discussions were taking place Brignoni filed a grievance challenging his temporary appointment. The Governor's Office of Employee Relations [GOER] determined that Brignoni's complaint was not grievable.

To “protect his employment,” Brignoni applied for and received a voluntary demotion to correction officer.

He later filed an improper practice charge against DC-82 with the Public Employment Relations Board (PERB), alleging that DC-82 had breached its duty of fair representation by settling the class action with DOCS in a manner detrimental to his interests.

In addition to dismissing Brignoni's charge as untimely, PERB also indicated that he “failed to establish that the Union had breached its duty of fair representation.” Brignoni filed a petition pursuant to Article 78 seeking to overturn PERB's decision.

Among the reasons given by a Supreme Court judge for dismissed Brignoni's petition was that it was untimely.

The Appellate Division affirmed the lower court's ruling, indicating that “[a] proceeding which seeks to review the determination of a body or officer must be commenced within four months after the determination becomes final and binding.”

Since Brignoni did not file his petition with in four months of PERB's final determination, he was barred from proceeding.

Brignoni attempted to persuade the court that his Article 78 petition was timely on the basis that the statute of limitations “was tolled during the pendency of his grievance proceeding against DOCS.”

The court decided that there was “no merit to this argument since the pursuit of an unavailable grievance procedure does not operate to toll the Statute of Limitations.” Pointing out that Brignoni's grievance was dismissed by GOER as “not grievable” and he did not challenge that determination within the four months period available to him for such purpose, this was yet another reason for holding Brignoni's Article 78 action untimely.

Equally unsuccessful was Brignoni's argument that his filing of an unfair labor practice charge with PERB tolled the Statute of Limitations. This Appellate Division said that this argument “is equally unavailing” since DOCS was not a party to that proceeding and, in any event, it did not impinge upon [Brignoni's] right to commence a timely Article 78 proceeding against DOCS.

Public policy and arbitration

Public policy and arbitration
NYC Transit Authority v Transport Workers Union, 279 AD2d 474

A New York City Transit Authority [NYCTA] employee was charged with failing to follow the proper procedure in applying the brakes on the subway train he was operating. This resulted in an accident and the derailment of the train. Dismissed from his position, the individual filed a grievance challenging his termination.

A Tripartite Arbitration Board denied the employee's grievance but imposed a lesser penalty -- demotion for not more than six months. NYCTA filed an Article 75 petition seeking to vacate the penalty imposed by the Board on the grounds the modification “was against public policy.”

The Appellate Division reversed a lower court's decision affirming the arbitration award that specifically vacated “so much of the arbitration award as reduced the penalty imposed from dismissal to demotion.”

Clearly an arbitration award may not be vacated unless it is violative of a strong public policy, is irrational, or clearly exceeds a specific limitation on an arbitrator's power. Here, however, the court concluded that the panel's changing the penalty imposed on the employee from dismissal to demotion was contrary to public policy.

The Appellate Division explained that the NYCTA “has an important statutory duty to operate the transit system for the safety of the public.” Requiring NYCTA to reinstate an employee who has been found to be a threat to public safety is both contrary to public policy and to NYCTA's statutory duty to operate the transit system safely. The decision also noted that the employee involved had two prior operational suspensions.

Management prerogatives - nonmandatory subjects of negotiations

Management prerogatives - nonmandatory subjects of negotiations
City of Niagara Falls v Niagara Falls Police Captains and Lieutenants Association, 33 PERB 3058

Niagara Falls filed an unfair labor practice charge with PERB contending that the Niagara Falls Police Captains and Lieutenants Association included two proposals that were nonmandatory subjects of negotiation in its petition for interest arbitration.

One proposal involved “qualifications” for appointment [proposal 1]; the second, proposal 13, concerned retirement benefits. PERB agreed with its Administrative Law Judge that both proposals were nonmandatory or prohibited subjects of collective bargaining and thus constituted excluded subjects for the purposes of compulsory interest arbitration.

The first proposal contained two basic elements.

The first element addressed qualifications for appointment to a position. PERB said that “qualifications for a position are a management prerogative and, thus, a nonmandatory subject of bargaining.”

However, coupled with this demand was a proposal setting out a procedure in which an appointment to a vacant position would be made by selecting the appointee from among the three most senior officers.

PERB said that it had previously held that “procedures to be used to fill a position, e.g., seniority, are a mandatory subject of negotiations.

However, coupling a mandatory demand with a nonmandatory demand results in both being deemed nonmandatory. PERB, citing it ruling in Matter of Police Benevolent Association of the City of White Plains, 33 PERB 3025, said:

“We have held that where a bargaining proposal contains two or more inseparable elements, i.e., a unitary demand, at least one of which is nonmandatory, the entire proposal is deemed nonmandatory.”

As to the second item objected to by Niagara Falls, proposal 13 provided that “[i]n the event the New York State Legislature authorizes the elimination of any restrictions on Tier II employees, the City will eliminate such restrictions.”

The Association argued that the ALJ incorrectly held that its proposal 13 involved additional Retirement and Social Security Law Section 443(f) pension benefits. PERB rejected the Association's characterizing proposal 13 as a non-retirement item.

PERB decided that the demand, in fact, was a retirement matter and that Section 443(f) benefits are not subject to compulsory interest arbitration.