Exception to seeking competitive bids for good and services

Exception to seeking competitive bids for good and services
Omni Recycling of Westbury, Inc. v Town of Oyster Bay, 11 NY3d 868

Typically a political subdivision of the State will solicit competitive bids for goods and services. However, this is not always the case, as the Omni Recycling decision by the Court of Appeals demonstrates.

The Town of Oyster Bay adopted a resolution authorizing the use of the procedures set out in General Municipal Law Section 104-b to obtain certain recycling services. Section 104-b provides for the procurement of goods and services without going through a competitive bidding process. The Town's Department of Public then distributed a RFP [Request for Proposals] for these recycling services to nine companies.

When another company, Giove Company was awarded the contract, Omni Recycling sued the Town and Giove, arguing that the Town should have used the competitive bidding process under General Municipal Law Section 103.

§103(1) provides, in part, that "[e]xcept as otherwise expressly provided by an act of the legislature or by a local law adopted prior to September first, nineteen hundred fifty-three, all contracts for public work involving an expenditure of more than twenty thousand dollars and all purchase contracts involving an expenditure of more than ten thousand dollars, shall be awarded . . . to the lowest responsible bidder furnishing the required security after advertisement for sealed bids in the manner provided by this section."

The Court of Appeals noted that “It has long been recognized that public work contracts that require the exercise of specialized or technical skills, expertise or knowledge are not subject to the sealed, competitive bidding requirements under §103 and may instead be awarded using the Request for Proposals (RFP) process set forth in General Municipal Law §104-b.”

Of the nine companies to which the RFP was sent, ultimately the proposals submitted by Omni and Giove were evaluated by an independent consultant. A public hearing was conducted and the contract was awarded to Grove.

Reversing a lower court’s ruling, the Court of Appeals held that based on the description of the particular services to be rendered set out in the RFP, “this recycling contract fell within the special skills exception to the 'lowest responsible bidder' requirement of Section 103(1) and therefore was properly awarded using an RFP process consistent with the Section 104-b procedures adopted by the Town.”

The full text of the decisions is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09850.htm

Tests used by the courts in determining if a GML §50-e(5) petition seeking approval to file a late notice of claim should be granted

Tests used by the courts in determining if a GML §50-e(5) petition seeking approval to file a late notice of claim should be granted
Burkhardt v Lindsay, 2010 NY Slip Op 06087, decided on July 13, 2010, Appellate Division, Second Department

Linda Burkhardt was employed as a Senior Legislative Aide to the Presiding Officer of the Suffolk County Legislature. Alleging that she was forced into retirement and “constructively terminated from her position on January 9, 2008,” based upon her age and her political affiliation, on February 24, 2009, Burkhardt attempted to serve a late notice of claim on the County.

The County rejected her claim and Burkhardt initiated a proceeding pursuant to General Municipal Law §50-e(5) seeking court approval for leave to serve a late notice of claim.

Supreme Court denied her petition and dismissed the proceeding. The Appellate Division affirmed the lower court’s decision.

The Appellate Division noted that when determining whether to grant such a petition in Burkhardt's case,* the Supreme Court was required to consider whether the following elements:

1. Was there a reasonable excuse for Burkhardt’s delay in serving her notice of claim?

2. Did the County have actual knowledge of the essential facts underlying Burkhardt's claims within 90 days of the accrual of those claims or a reasonable time thereafter? and

3. Did the delay in serving a timely notice of claim result in substantial prejudice to the County’s ability to defend itself against Burkhardt’s allegations on the merits?

The Appellate Division said that Burkhart failed to demonstrate that she had a “reasonable excuse” for her delay in filing her claim; that the County had actual knowledge of the critical facts underlying her complaint within 90 days of their accrual; or that the County would not be substantially prejudiced as a result of her delay in filing her claim.

Under these circumstances, said the court, “Supreme Court providently exercised its discretion in denying the petition and dismissing the proceeding.”

* Other factors that may be considered by the court in connection with an application for permission to file a late notice of claim include whether the claimant was an infant, was mentally or physically incapacitated, or died before the time limited for service of the notice of claim. In addition, if the claimant "justifiably relied on settlement representations made by an authorized individual or body; or if there was an "public corporation or its insurance carrier; or if there was an excusable error with respect to the identity of the public entity against which the claim should be asserted, the court may, in its discretion, grant the claimant's petition.

N.B. An application for leave to serve a late notice is not be denied because it was made after commencement of an action against the public entity.


The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06087.htm

Evidence of a valid reason for taking disciplinary action against an employee trumps a finding that there was an improper reason for such action

Evidence of a valid reason for taking disciplinary action against an employee trumps a finding that there was an improper reason for such action
Batyreva v New York City Dept. of Education, 57 AD3d 322, Motion to appeal denied, Slip Opinion No: 2009 NYSlipOp 67524

Olga Batyreva alleged that she was assigned to grade a Regents examination and while doing so, observed other teachers improperly grading the exam with No. 2 pencils instead of red pencils or red pens. She reported this violation to “to the appropriate officials.” As a result of her action, Batyreva claimed the New York City Department of Education gave her an unsatisfactory rating and instituted disciplinary action against her.

Batyreva filed an Article 78 action, challenging the unsatisfactory rating. Her action was dismissed on a finding that the ratings were not arbitrary and capricious (Batyreva v New York City Dept. of Educ., 50 AD3d 283).

Batyreva then filed a second lawsuit against DOE contending that it had retaliated against her for her exercise of free speech by giving her unsatisfactory evaluations ratings and instituting disciplinary proceedings falsely alleging incompetence in violation of 42 USC 1983, the Civil Right Act.

Supreme Court decided that Batyreva’s complaint “sufficiently alleges that the grading procedures are a matter of public concern,” and because it did not allege that she was “in a supervisory position or that it [was] part of her official responsibilities to report any suspected or real diversions from proper grading procedures," Batyreva was "speaking as a citizen and not in her official capacity as a public employee."

The Appellate Division held that the lower court’s ruling was incorrect. Rather, said the court, the holding in Batyreva’s prior Article 78 proceeding estops her from asserting that the unsatisfactory ratings and disciplinary proceeding were retaliatory violations of her right to free speech.

The court said that “proof that the [retaliatory] action was independently justified on grounds other than the improper one defeats [her 42 USC 1983] claim.”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09841.htm

Not every mischance resulting in an injury is an "accident" for the purpose of receiving an accidental disability retirement allowance

Not every mischance resulting in an injury is an "accident" for the purpose of receiving an accidental disability retirement allowance
Matter of Kenny v DiNapoli, 11 NY3d 873

Paul G. Kenny challenged the Comptroller’s decision to deny his application for accidental disability retirement benefits. Kelly contended that he was entitled to such benefits as a result of his having slipped on a wet ramp.

The Comptroller found that Kelly knew that the ramp was wet and, therefore, knew of the hazard that led to his injury before the incident occurred. Accordingly, the Comptroller concluded that Kelly’s injury was not the result of an "unexpected event."

The Court of Appeals sustained Comptroller’s determination, indicating that an “accident” for the purposes of being eligible for accidental disability retirement benefits must result from a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact."

Further, said the Court, "an injury which occurs without an unexpected event as the result of activity undertaken in the performance of ordinary employment duties, considered in view of the particular employment in question, is not an accidental injury."

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09857.htm

PERB holds employer's refusal to supply documents requested by union in connection with its processing a grievance violated the Taylor Law

PERB holds employer's refusal to supply documents requested by union in connection with its processing a grievance violated the Taylor Law
Hampton Bays Teachers' Association, NYSUT, AFT, AFL-CIO and Hampton Bays Union Free School District, U-26980 [Source: PERB’s Recent Decisions posting on the Internet]

The Board affirmed the decision of the ALJ finding that the District violated §§209a.1(a) and (d) of the Act when it refused the Association's requests for certain information and documents it sought for the investigation of a potential grievance and, following the filing of the grievance, for its processing on behalf of a probationary teacher.

The Board reiterated that, under the Act, an employee organization has a general right to receive documents and information, requested from an employer, for use by the employee organization in collective negotiations, the resolution of negotiation impasses and the administration of agreements including, but not limited to, the investigation of a potential grievance, the processing of a grievance and in the preparation for a grievance hearing and/or arbitration.

This general right to receive requested documents and information is subject to three primary limitations: reasonableness, relevancy and necessity.

The Board rejected the District's arguments that the Association's request for information and documents was not reasonable, relevant or necessary under the Act because it allegedly related solely to procedures under Education Law §3031 and that the Association lacked a legitimate contractual basis under the agreement to request information and documents.

The Board found that the Association's request was reasonable, relevant and necessary to the investigation into and processing of the grievance based upon the negotiated procedures applicable during the course of a teacher's probationary period.