Hearing officer may not the attorney of a party to draft findings of fact and determination to the attorney of a party in the proceeding

Hearing officer may not the attorney of a party to draft findings of fact and determination to the attorney of a party in the proceeding
LePore v McCall, 262 AD2d 919

This decision illustrates the fact that a hearing officer is responsible for making findings of fact and conclusions of law necessary to support his or her determination and recommendation. These tasks may not be delegated to another, much less to one of the parties involved in the action.

Anthony LePore, a Village of Nyack police officer, was involved in an automobile accident on May 11, 1989 while at work. Although he returned to duty in June 1989, his subsequent attendance at work was “sporadic,” due to his claim of pain and limited mobility. LePore ultimately stopped working on December 15, 1989.

In August 1994, LePore filed applications with New York State Policemens’ and Firemens’ Retirement System [PFRS] seeking accidental disability retirement benefits, or, in the alternative, performance of duty disability retirement benefits. PFRS “administratively” disapproved both of his applications in April 1995 and LePore filed a timely request for an administrative hearing and redetermination.

Hearings were held in May and August 1996 before a PFRS-appointed hearing officer. LePore’s medical experts testified that the injuries that he suffered from the automobile accident are permanent. PFRS’ medical expert testified that there were “no findings to state with any degree of medical certainty that [LePore’s] accident was the competent producing cause of his current condition.”

After hearing all of the testimony presented, the hearing officer issued his decision recommending that LePore’s applications be denied. He sent the decision to PFRS with a request that PFRS’s attorney draft “the findings of fact, conclusions of law and final determination.” The hearing officer did not send a copy of his decision or his request to LePore’s attorney.

PFRS’s attorney complied by preparing the findings of fact and conclusions of law as requested and returned the “decision” with the “findings and conclusions of law” to the hearing officer. The hearing officer signed and returned the decision to PFRS’s attorney on July 25, 1997 for review by the Comptroller. On August 29, 1997, copies of the hearing officer’s determination and the Comptroller’s decision rejecting LePore’s applications were sent to LePore’s attorney.

Complaining that the hearing officer’s action (a) denied him “due process” and (2) constituted a “clear and flagrant violation of State Administrative Procedure Act (SAPA) Section 307 (2), which prohibits ex parte communications [communication between the tribunal and only one of the parties to the proceeding], LePore appealed.

PFRS attempted to persuade the Appellate Division to affirm the Comptroller’s decision because “the hearing officer did not differ significantly from the final determination ultimately rendered by [the Comptroller].”

The Appellate Division rejected PRFS’s contentions, finding that “the procedure employed not only violated SAPA Section 307 (2) but also created such an appearance of impropriety and bias to warrant an annulment of the determination” . The court returned the decision to the Comptroller for a de novo determination [new decision] based on the record presented.

The lesson here is that although the entity that appointed the hearing officer may, based on the record, accept, reject or modify the hearing officer’s findings and recommendation, the findings and recommendation must be the actual “work product” of the hearing officer.
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Hearing officer, not the attorney of a party, may draft findings of fact and determinations in the proceeding

Hearing officer, not the attorney of a party, makes the findings of fact and determination in the proceeding
LePore v McCall, 262 AD2d 919

This decision illustrates the fact that a hearing officer is responsible for making findings of fact and conclusions of law necessary to support his or her determination and recommendation. These tasks may not be delegated to another, much less to one of the parties involved in the action.

Anthony LePore, a Village of Nyack police officer, was involved in an automobile accident on May 11, 1989 while at work. Although he returned to duty in June 1989, his subsequent attendance at work was “sporadic,” due to his claim of pain and limited mobility. LePore ultimately stopped working on December 15, 1989.

In August 1994, LePore filed applications with New York State Policemens’ and Firemens’ Retirement System [PFRS] seeking accidental disability retirement benefits, or, in the alternative, performance of duty disability retirement benefits. PFRS “administratively” disapproved both of his applications in April 1995 and LePore filed a timely request for an administrative hearing and redetermination.

Hearings were held in May and August 1996 before a PFRS-appointed hearing officer. LePore’s medical experts testified that the injuries that he suffered from the automobile accident are permanent. PFRS’ medical expert testified that there were “no findings to state with any degree of medical certainty that [LePore’s] accident was the competent producing cause of his current condition.”

After hearing all of the testimony presented, the hearing officer issued his decision recommending that LePore’s applications be denied. He sent the decision to PFRS with a request that PFRS’s attorney draft “the findings of fact, conclusions of law and final determination.” The hearing officer did not send a copy of his decision or his request to LePore’s attorney.

PFRS’s attorney complied by preparing the findings of fact and conclusions of law as requested and returned the “decision” with the “findings and conclusions of law” to the hearing officer. The hearing officer signed and returned the decision to PFRS’s attorney on July 25, 1997 for review by the Comptroller. On August 29, 1997, copies of the hearing officer’s determination and the Comptroller’s decision rejecting LePore’s applications were sent to LePore’s attorney.

Complaining that the hearing officer’s action (a) denied him “due process” and (2) constituted a “clear and flagrant violation of State Administrative Procedure Act (SAPA) Section 307 (2), which prohibits ex parte communications [communication between the tribunal and only one of the parties to the proceeding], LePore appealed.

PFRS attempted to persuade the Appellate Division to affirm the Comptroller’s decision because “the hearing officer did not differ significantly from the final determination ultimately rendered by [the Comptroller].”

The Appellate Division rejected PRFS’s contentions, finding that “the procedure employed not only violated SAPA Section 307 (2) but also created such an appearance of impropriety and bias to warrant an annulment of the determination” . The court returned the decision to the Comptroller for a de novo determination [new decision] based on the record presented.

The lesson here is that although the entity that appointed the hearing officer may, based on the record, accept, reject or modify the hearing officer’s findings and recommendation, the findings and recommendation must be the actual “work product” of the hearing officer.
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Doctrine of collateral estoppel may bar making of new findings of fact in an administrative hearing

Doctrine of collateral estoppel may bar making of new findings of fact in an administrative hearing
Foster v Commissioner of Labor, 262 AD2d 899

The Carthage Central School District dismissed Sharon Foster after a Section 75 disciplinary hearing officer found her guilty of misconduct in the operation of her school bus. The hearing officer found that Foster had backed up her school bus on a state highway on numerous occasions, although she knew that such a maneuver was unsafe.

Following her dismissal, Foster was denied unemployment insurance benefits on the grounds that she was terminated from her position for “disqualifying misconduct.”

After a number of procedural steps had been completed, an Unemployment Insurance Administrative Law Judge concluded that he was bound by the factual findings of the Section 75 proceeding and held that Foster’s action constituted disqualifying misconduct. The Appellate Division agreed, sustaining the Unemployment Insurance Board’s determination.

The Appellate Division also rejected Foster’s claim that she did not get a fair hearing before the Unemployment Insurance Board’s ALJ because she was not permitted to present a witness who was available to testify. The Appellate Division said that the witness’s testimony was irrelevant once the ALJ concluded that the underlying facts had been established by the final determination in the Section 75 proceeding.

According to the ruling, Foster, who was represented by counsel in the Section 75 disciplinary proceeding, had a full and fair opportunity to litigate all the factual issues concerning the charges of misconduct.

The court said that the factual findings made in during the Section 75 hearing were entitled to be given a collateral estoppel effect and thus Foster was “precluded from relitigating the factual issues” in the course of her unemployment insurance hearing.

In a parallel type of situation, if an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are filed related to that same incident of theft, there is no lawful way for an administrative disciplinary hearing officer to find the employee not guilty of stealing. This was the holding in Kelly v. Levin, 440 NY2d 424, a case that challenged the acquittal an employee in an administrative disciplinary action earlier found guilty of a criminal act involving the same allegations.
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Determining if a demand to submit a grievance to arbitration is subject to the “two-prong test"

Determining if a demand to submit a grievance to arbitration is subject to the “two-prong test"
Matter of Board of Educ. of Deer Park Union Free School Dist. v Deer Park Teachers' Assn., 2010 NY Slip Op 07338, Decided on October 12, 2010, Appellate Division, Second Department

Regina Moraitis was appointed to the position of Computer Teacher and subsequently she was awarded tenure in that area. In January 2009 the petitioner, Deer Park Union Free School District abolished Moraitis's position and terminated her employment.

The Deer Park Teachers' Association filed a grievance on behalf of Regina Moraitis pursuant to a collective bargaining agreement between the Deer Park School Union Free District and the Teachers' Association and ultimately demanded that the grievance be submitted to arbitration. The demand described the nature of the grievance as one for contract interpretation, and asserted that Deer Park had violated the collective bargaining agreement by abolishing Moraitis's teaching position and not offering her an available position.

Deer Park, in the course of the litigation, said that its appointment of Moraitis to the position of Computer Teacher was a mistake it did not discover until years after the appointment and she should have been appointed as a Computer Technology Staff Developer and that the Developer position was not in the collective bargaining unit represented by the Association.

Deer Park commenced an Article 75 proceeding seeking to permanently stay arbitration on the ground that Moraitis did not hold a position within the bargaining unit represented by the Teachers' Association. The Supreme Court denied Deer Park’s petition and dismissed the proceeding. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division said that to determine whether a dispute between a public sector employer and employee is arbitrable the courts apply a “two-prong test” described by the Court of Appeals in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.), 42 NY2d 509.

The first prong of the test: is any statutory, constitutional, or public policy prohibition against arbitrating the grievance? If there is no prohibition against arbitrating, the second prong of the test is triggered and the court must examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute.

As Deer Park did not contend that arbitration of the subject matter of the dispute was prohibited by law or public policy, the only issue to be resolved is whether the parties agreed to arbitrate the particular dispute.

In such a situation, said the Appellate Division, if the arbitration clause is broad enough to encompass the subject matter of a dispute, "[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator," citing Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak v Barni, 49 NY2d 311.

As the Court of Appeals ruled in Matter of Board of Educ. of Watertown City School Dist. v Watertown Educ. Assn., 74 NY2d 912, a stay of arbitration is inappropriate where "the parties' agreement to arbitrate the dispute is clear and unequivocal but there is some ambiguity as to the coverage of the applicable substantive provision of the contract."

Pointing out that the “Recognition Clause” in the collective bargaining agreement “explicitly excludes certain employees,” the court noted that the list of excluded employees did not include either the position of Computer Technology Staff Developer or Computer Teacher.

As Article XIII, Section 1(a) of the collective bargaining agreement defines a grievance terminating in binding arbitration as "a claim based upon interpretation, meaning or application of any provision of this contract" with only claim excluded from Article XIII, Section 1(a) is a claim regarding the denial of tenure, the Appellate Division concluded that collective bargaining agreement clearly provides for arbitration of a dispute involving the proper interpretation of its provisions and, on its face, “the subject matter of the dispute as set forth in the [Association’s] demand for arbitration is arbitrable.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07338.htm
NYPPL

Liability for line of duty injuries

Liability for line of duty injuries
Gonzalez v Iocovello, Appellate Division, 249 AD2d 143, Ct. of Appeals, 93 NY2d 539

The so-called “firefighter’s rule” refers to the strict limits that the courts have placed on the ability of police officers and firefighters to sue co-workers or others for injuries suffered in the line of duty, even if negligence was involved. One notable decision is Santangelo v New York State, 71 NY2d 393, in which the Court of Appeals -- the state’s highest court -- said the firefighter’s rule barred a police officer from suing a co-worker for injuries the officer suffered in the line of duty.

The legislature responded to the Santangelo ruling by enacting Section 205-e of the General Municipal Law in 1989 to nullify it. Essentially, Section 205-e allows a police officer to sue a co-worker and, or, the employer in cases where the defendant’s violation of a law, rule or regulation caused the police officer’s or firefighter’s line of duty injury.*

The ability of police officers to sue, and win damages, when the violation of a law by a fellow officer caused the injury was confirmed by the Court of Appeals in the Gonzalez decision. The case involved New York City police officer Maria C. Gonzalez, who suffered a permanent line of duty injury when the patrol car in which she was a passenger drove through a red light while responding to a “burglary in progress” call and was struck by another vehicle.

Gonzalez sued the city, claiming that she had been injured in the line of duty because her partner violated the Vehicle and Traffic Law. The city, on the other hand, contended that Gonzalez could not sue it on the theory that she suffered the injury as a result of her partner’s violation of a law. But the Court of Appeals disagreed and let her $3,300,000 jury award stand. Finding that there was nothing in Section 205-e to prevent Gonzalez from suing, the court commented that if the legislature had intended to bar such lawsuits, it “could have easily” done so in view of the several amendments to Section 205-e it had enacted.

The decision states that a violation of the Vehicle and Traffic Law is a valid basis for a claim under Section 205-e. The court pointed out that although Section 1104(e) of the V&T Law “allows emergency vehicles to run stoplights and violate other traffic laws in emergency situations,” the emergency vehicle driver is liable for his or her “reckless disregard for the safety of others.’”

In another case decided at the same time, Cosgriff v City of New York, 93 NY2d 539, the Court of Appeals ruled that the city’s failure to keep its sidewalks in “safe repair” violated the City’s Charter and its Administrative Code and thus it could be sued pursuant to Section 205-e by a police officer who tripped on a defective sidewalk while chasing a drug dealer.

* The General Obligations Law allows lawuits by police officers and firefighters injured by the negligence or intentional conduct of any person, except an employer or co-employee (Chapter 703, Laws of 1996). The Court of Appeals said that “[t]he inclusion of the explicit exception in General Obligations Law Section 11-106 magnifies its absence in General Municipal Law Section 205-e,” especially since Section 205-e was amended by the same Chapter 703.
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Rating the oral test performance by applicants in a civil service examination to be based on objective standards

Rating the oral test performance by applicants in a civil service examination to be based on objective standards
Merlino v Schneider, Ct. of Appeals, 93 NY2d 477

Oral tests are sometimes included as part of the examination for appointment and promotion in the public service. The Merlino case sets out the basic standard used by the courts in reviewing appeals challenging the candidate’s oral test score.

Carmen Merlino challenged her oral test score for an examination for language proficiency. The Court of Appeals held that Merlin’s test results were based on “objective standards,” commenting that the abilities for which candidates would be tested and the substance, form and method of the oral exam were all clearly delineated. Essentially, courts require oral tests to provide a reviewable record and an objective rating scheme to pass judicial scrutiny.

The court said that in this instance:

The oral language exam tested grammar, pronunciation, and vocabulary in the context of a 15-minute extemporaneous conversation. These qualities cannot be measured solely by objective criteria. Although some subjective elements, of necessity, entered into the evaluation, the fact that a subjective element may have been involved to some degree in petitioner's rating is not sufficient in and of itself to invalidate the Department's ultimate determination: "The mandate of the Constitution for the ascertainment of merit and fitness, so far as practicable, by competitive examination, may not be transformed into an interdict against the examinations which are best adapted for the demonstration of fitness. It would be impossible to formulate a standard by which such qualities may be defined or measured with entire objectivity.”
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Overtime and the Fair Labor Standards Act

Overtime and the Fair Labor Standards Act
Alden v Maine, US Supreme Court, 527 U.S. 706

The question of the enforceability of the Fair Labor Standards Act’s [FLSA] mandates concerning overtime with respect to employees in the public service, especially those engaged in law enforcement and firefighting, has been an issue for a number of years.

In Alden v Maine the U.S. Supreme Court held that federal courts do not have jurisdiction to adjudicate alleged FLSA violations insofar as states are concerned, nor does a state court have jurisdiction to consider a state’s alleged FLSA violations without the consent of the state. Why? Because the 11th Amendment, which provides states with sovereign immunity, bars such lawsuits in federal court.

In the words of the High Court, “Congress lacks power under Article I to abrogate the States’ sovereign immunity from suits commenced or prosecuted in the federal courts.” Further, the court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts.” This means that state workers are unable to sue their employer concerning alleged FLSA violations unless it has consented to such suits.

However, the “overtime provision” set out in Section 134 of New York’s Civil Service Law preceded Congress’ attempt to make the states subject to FLSA. Accordingly, it could be argued that New York State, as an employer, did not “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court based on the decision in Mueller v Thompson.

If a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, it loses its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA [Mueller v Thompson, 858 F.Supp. 885].

In Mueller, where Wisconsin was the employer, the court said that there is no waiver of a state’s Eleventh Amendment immunity “unless the state has made its intention to waive its rights under the amendment clear.” Wisconsin had incorporated FLSA into state law in 1971. In 1974 Congress amended the FLSA, making it applicable to the states and their political subdivisions. The 7th Circuit concluded that “on this legislative history” Wisconsin had not waived its 11th Amendment immunity because it adopted a state FLSA prior to 1974. Does this mean that payment for overtime is no longer required to be paid to employees of New York State? No, for a number of reasons.

Section 134 of the Civil Service Law provides for the payment of overtime at “time and one-half” to eligible state workers. Alleged violations of Section 134 - a state law - may be tested in state court. In addition, collective bargaining agreements negotiated pursuant to the Taylor Law may require payment for overtime. Violation of such types of provisions are typically subject to contract grievance arbitration procedures.

What about suing a political subdivision of a state for alleged violations of FLSA in federal court? According to the Alden ruling there is an “important limit” to the principle of sovereign immunity barring suits against States -- the immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity that is not an arm of the State.
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The employee organization's duty of fair representation

The employee organization's duty of fair representation
Pietraszewski and CSEA Local 1000, 32 PERB 3019

Does a union’s duty of fair representation require it to provide assistance -- financial or legal -- simply because a unit member wishes to file a lawsuit against his or her employer? This was the significant question raised by Arthur Pietraszewski, Jr. when he filed an improper practice charge against CSEA Local 1000.

CSEA Local 1000 declined to represent Pietraszewski in his age discrimination lawsuit against the state. It also refused to reimburse him for the fees he paid to a private attorney whom he retained to represent him in that lawsuit.

Contending that CSEA’s actions violated its duty of fair representation, Pietraszewski filed improper practice charges against CSEA with PERB.

CSEA told PERB that it decided not to provide Pietraszewski with legal assistance or financial support in his lawsuit because, after reviewing his allegations, it believed that his case was “not sufficiently meritorious for CSEA to take it on.”

PERB dismissed Pietraszewski’s complaint, commenting that a union enjoys “wide latitude” with respect to the investigation and prosecution of contract grievances. In other words, the union can exercise its discretion with respect to filing the grievance or prosecuting the grievance beyond a particular step in the grievance procedure.

This same “wide latitude,” said PERB, is equally applicable with respect to a union’s decision regarding its providing legal services concerning matters arising outside the collective bargaining agreement.

PERB found that CSEA had made its decision in good faith, commenting that even if CSEA were in error regarding the merits of Pietraszewski’s age discrimination allegations, that judgmental mistake would not constitute a breach of its duty of fair representation.

According to the ruling, having properly denied Pietraszewski’s request for representation, CSEA was not required reimburse him for his attorney’s fees and other expenses he may have incurred in pursuing the litigation he initiated.

In another case duty of fair representation case, Brignoni and Council 82, 32 PERB 3020, PERB said that settling a grievance under terms that may adversely affect some, but not other, unit members does not support a finding that the employee organization violated its duty of fair representation without evidence of arbitrary or discriminatory action or bad faith on the part of the employee organization, citing United University Professionals, 22 PERB 3013.
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Accidental disability retirement

Accidental disability retirement
Bloom v City of New York, NYS Supreme Court, 7/99, Justice Braun [Not selected for publication in the Official Reports]

Bloom, a guidance counselor for the New York City School District, filed a grievance contending that she was disabled as a result of her inhaling toxic substances that arose from construction, repairs, and renovation of her school. Former New York City Board of Education Chancellor Joseph Fernandez sustained her grievance, holding that Bloom had suffered “a line of duty injury.”

But when Bloom filed an accidental disability retirement application with the New York City Teachers’ Retirement System [TRS], TRS held that her injuries were not causally related to the alleged exposure to construction materials and rejected her application. TRS’ decision was upheld by the courts (Bloom v TRS, 233 AD2d 254, dismissed in part and denied in part, 90 NY2d 838.

Bloom then sued the district and the City for “a personal injury,” negligence and reckless conduct. The board of education moved for summary judgment, arguing that TRS’s determination “has a collateral estoppel effect.”

Bloom, also relying on “collateral estoppel,” asked the court for summary judgment based on the favorable grievance determination by the Chancellor, contending that the Chancellor’s determination constituted an admission of the district’s liability.

As to the board’s claim of collateral estoppel, the court explained that Bloom had “voluntarily chose to participate in the adjudicative resolution process of TRS by applying for benefits, and thus she may fairly be collaterally estopped by the TRS determination.”

With respect to Bloom’s argument, the court said that the Chancellor’s acknowledgement of the causal connection in the grievance adjudication normally would be a binding admission against the board.

Justice Braun said that although “... a quasi-judicial agency determination can have a collateral estoppel effect” that would bar further litigation; here there are “two conflicting decisions.” Therefore, the court concluded, “logically they must be held to cancel out each other.”

Since there is a significant issue of fact exists as to whether the actions and inactions of board was the proximate cause of Bloom’s injuries, granting summary judgment to either Bloom or the board would not be appropriate.

Accordingly, a trial was required.
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