Disciplinary settlement agreements are typically subject to "narrow construction"

Disciplinary settlement agreements are typically subject to "narrow construction"

Marine Engineers' Beneficial Assn. v City of New York, 2019 NY Slip Op 01327, Appellate Division, First Department

The term "narrow construction" used to describe the application of a law, rule or regulation based on a literal and narrow interpretation of the text of the provision. Marine Engineer's is an example of "narrow construction" in the interpretation and application of the terms and conditions set out in  a disciplinary settlement agreements.

A Chief Marine Engineer [CME] of a Staten Island ferryboat was found asleep on duty during his shift. The CME's union and the City of New York [City] entered into an agreement to settle the matter in which the CME agreed to a 30-day suspension without pay "in full satisfaction of the disciplinary matter."

Upon returning to work following the suspension without pay, the CME was told that he could not work as a Chief Marine Engineer aboard vessels in service and could not bid for job assignments in his title. Although CME retained his CME title and hourly rate of pay for regular and overtime duty, the number of overtime hours available to him with respect to his assignments in the lower title to which he was permitted to bid was limited. CME objected to the City's action and ultimately the union submitted the matter to arbitration.

The arbitrator found that the City's restricting CME's bidding rights after his suspension constituted a de factodemotion and violated the section of the controlling collective bargaining agreement that provided as follows:

"Per annum Licensed Officers shall have the right to bid for jobs on the basis of seniority. Such bid will be permanent for one year. Changes may be made before the expiration of the year by mutual consent of the Licensed Officers, subject to prior approval by the Employer. Such approval shall not be unreasonably withheld."

City filed an appeal pursuant to CPLR Article 75 seeking an order vacating the arbitration award. Supreme Court denied the City's motion and granted the union's motion to confirm the award. Subsequently the Appellate Division unanimously affirmed the Supreme Court's rulings.

The City had contended that the arbitration award, which found that the CME had the right to bid and work as a full-duty CME without regard to the incident that gave rise to the settlement agreement, violated public policy with respect to maritime passenger safety.

The Appellate Division, citing Matter of Local 333, United Mar. Div., Intl. Longshoreman's Assn., AFL-CIO v New York City Dept. of Transp., 35 AD3d 211, rejected this argument, explaining that the City's safety concerns, "albeit important, are not 'embodied in constitutional, statutory or common law [that] prohibit a particular matter from being decided or certain relief from being granted by an arbitrator.'"

The court also rejected City's claim that its action was consistent with its "management prerogative pursuant to New York City Administrative Code §12-307(b) as well as its reliance on 18 USC §1115 [Misconduct or neglect of ship officers], explaining neither could be read "to bar or add to the actions taken by the parties' representatives to resolve this disciplinary matter."

Another decision illustrating limitations imposed by a disciplinary settlement agreement with respect to action by the appointing authority is Taylor v Cass, 122 A.D.2d 885.

The disciplinary settlement agreement controlling in Taylor provided that the appointing authority could summarily terminate the employee without a disciplinary hearing if, in the opinion of Taylor's superior, Taylor's "job performance was adversely affected by his intoxication on the job during the next six months.”

Taylor was terminated during this six month period without a hearing "for failing to give a fair day’s work and sleeping during scheduled working hours." However, there was no allegation that Taylor had been intoxicated on the job listed among the reasons alleged for his being summarily terminated from his position by the appointing authority.

Taylor challenged his termination and won reinstatement with back salary. The Appellate Division said that Taylor's dismissal without notice and hearing was improper because he had not been terminated for the sole reason specified in the disciplinary settlement agreement - "intoxication on the job during the next six months."

The CME's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01327.htm

Amendment to Title 22 NYCRR codifying the practice that a witness may have counsel present during a Commission hearing

State Commission on Judicial Conduct

PROPOSED RULE MAKING - NO HEARING(S) SCHEDULED

Counsel for Witnesses at Hearings

Source: New York State Register, item I.D. No. JDC-08-19-00006-P

PURSUANT TO THE PROVISIONS OF THE

State Administrative Procedure Act,

NOTICE is hereby given of the following proposed rule:

Proposed Action: Addition of §7000.6(i)(3) to Title 22 NYCRR. Statutory authority: Judiciary Law, §42(5)

Subject: Counsel for witnesses at hearings.

Purpose: To codify the practice that a witness may have legal counsel present during a commission hearing. Text of proposed rule: A new paragraph of subdivision (i) of §7000.6 is added to read as follows: (3) At a hearing, counsel for a witness may be present while his or her client is testifying and may request permission of the referee to consult with the client, but may not object to questions, examine or cross-examine witnesses or otherwise participate in the proceedings.

Text of proposed rule and any required statements and analyses may be obtained from: Marisa E. Harrison, Commission on Judicial Conduct, Corning Tower, Suite 2301, Empire State Plaza, Albany, New York 12223, (518) 453-4600, email: harrison@cjc.ny.gov

Data, views or arguments may be submitted to Marisa E. Harrison at harrison@cjc.ny.gov

Public comment will be received until: 60 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority: Judiciary Law, §42(5).

2. Legislative objectives: The proposed change would clarify that counsel for a witness may be present while his or client is testifying at a Commission hearing, and may request permission of the referee to consult with the client, but may not object to questions, examine or cross-examine witnesses or otherwise participate in the proceedings.

3. Needs and benefits: The proposal seeks to clarify ambiguities and better reflect actual Commission practice that allows a witness to have counsel present during Commission hearings.

Workers' Compensation Leave is not an available to an employee who has suffered a permanent job related injury or disease

Workers' Compensation Leave is not an available to an employee who has suffered a permanent job related injury or disease

OATH Index No. 1774/18

The appointing authority served disciplinary charges against an employee pursuant to §75 of the Civil Service Law alleging "medical incompetence  based on the employee's  "excessive use of sick leave due to job-related injuries." The penalty sought: termination.

The employee argued that the disciplinary charges should be dismissed and that the matter  converted to a disability leave proceeding within the meaning of §71 of the Civil Service Law. §71 mandates that leaves of absence, typically referred to as Workers' Compensation Leave, is to be given to an individual absent from work as the result of the individual having suffered an occupational illness or disease for specified cumulative limited periods of time "unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position." [Emphasis supplied.]

Noting that the employee had filed for "permanent disability retirement" benefits, OATH Administrative Law Judge Faye Lewis concluded that §71 leave was not an available option under the circumstances and that the appointing authority could proceed with disciplinary action.*

As the evidence in the record indicated that the employee had been absent for almost "300 sick days over a 21 month period," which Judge Lewis found was  sufficient to establish an excessive use of sick leave, the ALJ found the employee guilty of the charges and specifications and recommended that the penalty of dismissal be imposed by the appointing authority.

* In Dickinson v New York State Unified Court System, 99 AD3d 569, the Appellate Division unanimously confirmed the termination of an employee found guilty of “certain disciplinary charges” that alleged, among other things, incompetency due to excessive absenteeism and lateness. As to the penalty imposed, dismissal, the court said that the penalty did not shock its sense of fairness as “[b]eing present at work is an essential job function.”

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1774.pdf

NYC Commission on Human Rights adopts new rules addressing transgender, non-binary, and gender non-conforming individuals discrimination

NYC Commission on Human Rights adopts new rules addressing transgender, non-binary, and gender non-conforming individuals discrimination

Source: Amanda M. Gomez, Esq., Employment, Labor & Workforce Management at the  New York office of Epstein Becker Green. 

The New York City Commission on Human Rights (the “Commission”) has adopted new rules (“Rules”) which establish broad protections for transgender, non-binary, and gender non-conforming individuals. The Rules, which define various terms related to gender identity and expression, re-enforce recent statutory changes to the definition of the term “gender,” and clarify the scope of protections afforded gender identity status under the New York City Human Rights Law. New York Statealso just added gender identity and expression as protected classifications under the state Human Rights Law, following the adoption of the Gender Expression Non-Discrimination Act.

The text of Ms.Gomez's article is posted on the Internet at"

https://www.natlawreview.com/article/nyc-commission-human-rights-adopts-rules-establishing-broad-interpretation-laws?utm_content=21dff93cbf4b8883f6a723f068dbc0fa&utm_campaign=Labor%20and%20Employment%20News2-21-2019&utm_source=Robly.com&utm_medium=email

Challenging the credibility of the witness

Challenging the credibility of the witness

Ghastin v New York City Dept. of Educ., 2019 NY Slip Op 01152, Appellate Division, First Department

The Plaintiff in this action asked Supreme Court to vacate an Education Law §3020-a arbitrator's award that found the individual guilty of certain disciplinary charges and imposed a penalty of suspension without pay for four weeks. Supreme Court granted the New York City Department of Education's motion to dismiss Plaintiff's petition and Plaintiff appealed. 

The Appellate Division sustained the lower court's ruling.

Plaintiff had objected to the hearing officer's "credibility determinations" with respect to the testimony of the Department's witnesses at the hearing. The Appellate Division said that the fact that the hearing officer found the testimony of the Department's witnesses more credible than Plaintiff's testimony does not serve to demonstrate that the hearing officer's determination was arbitrary and capricious.*

As to the penalty imposed by the hearing officer, the court observed that Plaintiff  failed to demonstrate how a four-week suspension without pay is so shockingly disproportionate to the offenses involved that it constitutes an abuse of discretion "given her proven misconduct which could have resulted in violence."

Noting that the Plaintiff had some 19 years of service at the time of the hearing with no known disciplinary record before the incident, the Appellate Division said that the record shows that Plaintiff failed to acknowledge the gravity of her misconduct, continued to deny any wrongdoing and showed a lack of remorse for her actions.

Another issue raised by Plaintiff: Did the hearing officer have jurisdiction to decide the matter. However, Plaintiff first raised this issue in the petition filed in Supreme Court. The Appellate Division, citing Matter of DeMartino v New York City Department of Transportation, 67 AD3d 479 said that raising the question of the jurisdiction of the hearing officer was of "no moment" as Petitioner is deemed to have "waived the issue" when it was not raised in the course of the arbitration.

* The Appellate Division described the testimony of the Department's witnesses as "interlocking and closely corroborating".

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01152.htm

Reports and audits issued by New York State Comptroller Thomas P. DiNapoli

On February 15, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits were issued.

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Procurement of Electricity and Natural Gas through Aggregators (2018MS-5)

Local governments and school districts did not always evaluate procurement options or make comparisons to benchmark rates to ensure they received the lowest prices for electricity and natural gas. Five of seven entities reviewed (city of Albany; counties of Broome, Cortland and Oneida; and North Syracuse Central School District) spent approximately $2.4 million more for electricity than the benchmark rate used by auditors.

Bainbridge Fire District – Board Oversight (Chenango County)

The board established adequate controls to help safeguard assets, and the legally required procurement policy, investment policy and code of ethics were in place. The treasurer’s financial records and reports accurately and properly accounted for all financial activities. Although the board did not perform a formal annual audit of the treasurer’s records, it reviewed reports each month and performed a thorough audit of claims before they were paid to ensure they were supported and funds were used for legitimate expenditures.

Town of Hyde Park – Payroll and Time Records (Dutchess County)

Controls over payroll and time records were adequate to ensure the accuracy of payroll and time records.  While the town has a good system in place, it could be further improved by filing approved time sheets electronically instead of printing them out only to have paper copies on file in order to save the time and expense of printing. 

Town of Lyons – Real Property Tax Exemptions Administration (Wayne County)

The assessor granted a total of 633 non-New York State School Tax Relief Program property tax exemptions for non-municipal owned property on the 2017 assessment roll, collectively reducing the town’s 2018 taxable assessed value by more than $34 million. The assessor granted exemptions without applications, renewal forms or supporting documentation and did not correctly calculate granted exemptions.

Town of Moravia – Real Property Tax Exemptions Administration (Cayuga County)

The assessor granted 306 non-NYS School Tax Relief Program exemptions on non-municipal owned property on the 2017 assessment roll, which collectively reduced the town’s 2018 taxable assessed value by more than $12 million. Auditors reviewed 85 exemptions totaling $9.3 million and identified issues with 68 exemptions totaling $6.9 million (74 percent). The files related to the 85 granted exemptions and found that 68 exemptions (80 percent) totaling $6.9 million in town-exempt assessed value lacked one or more required supporting documents to determine eligibility or verify the accuracy of the exemption calculation.

Town of Solon – Financial Management (Cortland County)

The board did not adopt a fund balance and reserve policy or create comprehensive multiyear financial and capital plans. From Dec. 31, 2014 through Dec. 31, 2017, general fund unrestricted fund balance increased by $106,230 (110 percent). Over the same three-year period, highway fund unrestricted fund balance increased by $50,007 (24 percent).

On February 15, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits were issued.

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Procurement of Electricity and Natural Gas through Aggregators (2018MS-5)

Local governments and school districts did not always evaluate procurement options or make comparisons to benchmark rates to ensure they received the lowest prices for electricity and natural gas. Five of seven entities reviewed (city of Albany; counties of Broome, Cortland and Oneida; and North Syracuse Central School District) spent approximately $2.4 million more for electricity than the benchmark rate used by auditors.

Bainbridge Fire District – Board Oversight (Chenango County)

The board established adequate controls to help safeguard assets, and the legally required procurement policy, investment policy and code of ethics were in place. The treasurer’s financial records and reports accurately and properly accounted for all financial activities. Although the board did not perform a formal annual audit of the treasurer’s records, it reviewed reports each month and performed a thorough audit of claims before they were paid to ensure they were supported and funds were used for legitimate expenditures.

Town of Hyde Park – Payroll and Time Records (Dutchess County)

Controls over payroll and time records were adequate to ensure the accuracy of payroll and time records.  While the town has a good system in place, it could be further improved by filing approved time sheets electronically instead of printing them out only to have paper copies on file in order to save the time and expense of printing. 

Town of Lyons – Real Property Tax Exemptions Administration (Wayne County)

The assessor granted a total of 633 non-New York State School Tax Relief Program property tax exemptions for non-municipal owned property on the 2017 assessment roll, collectively reducing the town’s 2018 taxable assessed value by more than $34 million. The assessor granted exemptions without applications, renewal forms or supporting documentation and did not correctly calculate granted exemptions.

Town of Moravia – Real Property Tax Exemptions Administration (Cayuga County)

The assessor granted 306 non-NYS School Tax Relief Program exemptions on non-municipal owned property on the 2017 assessment roll, which collectively reduced the town’s 2018 taxable assessed value by more than $12 million. Auditors reviewed 85 exemptions totaling $9.3 million and identified issues with 68 exemptions totaling $6.9 million (74 percent). The files related to the 85 granted exemptions and found that 68 exemptions (80 percent) totaling $6.9 million in town-exempt assessed value lacked one or more required supporting documents to determine eligibility or verify the accuracy of the exemption calculation.

Town of Solon – Financial Management (Cortland County)

The board did not adopt a fund balance and reserve policy or create comprehensive multiyear financial and capital plans. From Dec. 31, 2014 through Dec. 31, 2017, general fund unrestricted fund balance increased by $106,230 (110 percent). Over the same three-year period, highway fund unrestricted fund balance increased by $50,007 (24 percent).