Vacating an arbitration award based on allegations that the arbitrator was not impartial
Meehan v Nassau Community College, App. Div., 251 A.D.2d 417, Motion for leave to appeal dismissed, 92 N.Y.2d 946
This item summarizes a number of related decisions involving the same parties considered by the Appellate Division.
Article 75 of the Civil Practice Law and Rules [CPLR] sets out very limited grounds upon which a party who has either participated in an arbitration, or has been served with a notice of intention to arbitrate, may ask the courts to vacate or modify the award. In order to vacate an award, the court must find that the rights of the moving party were prejudiced by:
1. Corruption, fraud or misconduct in procuring the award; or
2. Partiality of an arbitrator appointed as a neutral, except where the award was by confession; or
3. An arbitrator, or agency or person making the award exceeded his or her power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or
4. The failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.
Nassau County Community College sought to overturn two arbitration awards under Article 75.
The first, referred to by the Appellate Division as the “overload arbitration,” involved a complaint by the Nassau County Community College Adjunct Faculty Association that the college had assigned certain “overload courses” to members of the full-time faculty, rather than employ members of the adjunct faculty to teach these courses.
The second award, the “History Department” arbitration, involved persons who lacked certain academic credentials teaching in that department.
In both cases the college asked the court to vacate the award because one member of a three-person arbitration panel selected by the parties had direct personal knowledge of the disputed facts underlying the grievances and that this arbitrator testified concerning these facts during the arbitration. This conduct by the arbitrator, the College urged, justified overturning the arbitration panel’s award in favor of the Association.
The contract grievance procedure relevant between the parties provided that the arbitration panel would consist of “one member selected by the College Administration, one selected by the Adjunct Faculty Association, and a third selected by mutual consent.”
According to the ruling, the Association’s designated member of the arbitration panel testified at the arbitration that because of “the assignment of various overload courses, more senior adjunct instructors had been `bumped’ by less senior full-time instructors” as well as other matters at issue. The College argued that “[a]rbitrator Loiacono demonstrated partiality and engaged in misconduct when he testified in support of the [union’s] position” at the arbitration.
In “overload courses” award the Appellate Division rejected the college’s argument, holding that “that the CPLR does not authorize vacatur on this ground.” According to the Appellate Division, the terms of CPLR 7511(b)(ii), which specify that the “partiality” of an arbitrator “appointed as a neutral” may be a basis for vacatur, imply that the “partiality” of a party-designated member of an arbitral board may not be the basis for vacatur.
The Appellate Division said “a party-designated arbitrator may in fact be `partial’“ and that by itself this is not grounds for vacating an arbitration award. Nor did the Appellate Division have any problem with a panel member testifying at the hearing.
This ruling may have a significant impact in Section 3020-a disciplinary appeals, which now are processed pursuant to CPLR Article 75 rather than CPLR Article 78 as was the case before Section 3920-a was amended in 1984. Syquia v Harpursville Central School District, 568 NYS2d 263 involved the alleged partiality of members of a disciplinary panel convened under the “old” Education Law Section 3020-a.
The attorney for Harpursville had advanced the argument that “a 3020-a hearing is, and is intended to be, something other than a fully impartial fact finding hearing, and that the panel members selected respectively by the Board of Education and by the teacher are advocates for the party respectively selecting them, with only the Chairman intended to be impartial.”
A state Supreme Court justice said that this was a misunderstanding in educational circles, “if such in fact exists.” The court declared that it was a “misapprehension that in 3020-a hearings the panel member selected by the Board is the `Board’s representative,’ and the panel member selected by the teacher is the `teacher’s representative,’ and only the Chairman is expected to be neutral and impartial.” According to the Meehan decision, this is no longer the case.
In the Nassau decision, [decided pursuant to Article 75 of the CPLR, rather than Article 78, the court held that a party-designated arbitrator may, in fact, be partial. Accordingly, said the court, Mr. Loiacono’s participation in the arbitration proceedings in the dual capacity of arbitrator and witness may serve as a basis for vacatur only if his behavior in this regard can be properly characterized as constituting corruption, fraud, or misconduct within the meaning of CPLR Section 7511[b][1][i].
Holding that Loiacono’s behavior could not be so characterized, the court confirmed the award. Nor was the “overload course” award held to be violative of public policy. According to the decision, a collective bargaining agreement limiting the college’s ability to assign courses in excess of a specified amount did not interfere with its ability to establish qualifications for its faculty.
In contrast, in the “History Department” aspect of the appeal the Appellate Division decided that the award, “which requires the college to reinstate the grievants, although it is undisputed that they were unqualified to teach courses in the History Department because of their lack of certain academic credentials,” should be vacated. This, however, was not because of Loiacono’s testimony and his participation as an arbitrator in the arbitration proceedings. Rather, said the court, the award had to be vacated because it violates public policy.
The court explained that although not every arbitration under a Taylor Law agreement “that threatens to limit the management prerogatives [of a public employer] is violative of public policy,” here the award’s mandate affected the college’s authority to establish the qualifications of its adjunct faculty and thereby affect the maintenance of academic standards in the classroom.
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
July 23, 2010
Multiple Section 75 thirty-day suspensions without pay are permitted if additional disciplinary charges are subsequently filed against the employee
Multiple Section 75 thirty-day suspensions without pay are permitted if additional disciplinary charges are subsequently filed against the employee
Figueroa v NYS Thruway Authority, App. Div., 251 A.D.2d 773
The New York State Thruway Authority filed a series of four charges against Gladys Figueroa, its Affirmative Action Administrator. Each time it suspended her without pay for 30 days pending the completion of the disciplinary action as permitted by Section 75 of the Civil Service Law.
In a number of instances the suspensions overlapped pending disciplinary actions because she was served with new charges before a hearing was completed on earlier charges based on new alleged acts of misconduct.
The first hearing officer found Figueroa guilty and recommended a 60-day suspension without pay; a second hearing officer found her guilty and recommended she be given a reprimand. Before the hearings to resolve the third and fourth disciplinary sets of charges commenced, Figueroa resigned.
Figueroa sued, challenging the findings of the hearing officers with respect to the first and second set of charges and the lawfulness of her four 30-day suspensions without pay. She also asked for back pay and benefits or, in the alternative, new hearings.
According to the Appellate Division, in most instances the hearing officer found Figueroa guilty based on her own admissions. Among the examples of such admissions cited by the court: Figueroa admitted that she had deliberately read confidential material after being told not to; that she left the building after being told to wait outside a supervisor’s office; and that she did not return “excess” travel advances to the Authority in a timely manner.
As to the four suspensions, the court pointed out that Section 75.3 allows an employer to suspend an employee without pay for up to 30 days without pay. It said that it was not persuaded that it was improper to suspend Figueroa “on each of the four separate occasions when she was charged with misconduct.”
The Appellate Division distinguished Figueroa’s situation from that where the appointing authority “has deliberately severed charges for the sole purpose of imposing multiple suspensions.” It noted that the second, third and fourth suspensions resulted from events that occurred after Figueroa had returned from work following the earlier suspensions and resulted in new charges of misconduct being filed against her. However, said the court, Figueroa was still entitled to hearings on the third and fourth sets of charges filed against her because “her resignation neither terminated the proceedings” with respect to those charges nor “obviated [the] adjudication of them.”
Accordingly, the court ruled that hearings on these charges should be held. It also said that Figueroa “if so inclined [may] pursue an action for back pay.”
The Appellate Division pointed out, there was no evidence that Figueroa’s resignation constituted a waiver or abandonment of her claims for back salary.
Figueroa v NYS Thruway Authority, App. Div., 251 A.D.2d 773
The New York State Thruway Authority filed a series of four charges against Gladys Figueroa, its Affirmative Action Administrator. Each time it suspended her without pay for 30 days pending the completion of the disciplinary action as permitted by Section 75 of the Civil Service Law.
In a number of instances the suspensions overlapped pending disciplinary actions because she was served with new charges before a hearing was completed on earlier charges based on new alleged acts of misconduct.
The first hearing officer found Figueroa guilty and recommended a 60-day suspension without pay; a second hearing officer found her guilty and recommended she be given a reprimand. Before the hearings to resolve the third and fourth disciplinary sets of charges commenced, Figueroa resigned.
Figueroa sued, challenging the findings of the hearing officers with respect to the first and second set of charges and the lawfulness of her four 30-day suspensions without pay. She also asked for back pay and benefits or, in the alternative, new hearings.
According to the Appellate Division, in most instances the hearing officer found Figueroa guilty based on her own admissions. Among the examples of such admissions cited by the court: Figueroa admitted that she had deliberately read confidential material after being told not to; that she left the building after being told to wait outside a supervisor’s office; and that she did not return “excess” travel advances to the Authority in a timely manner.
As to the four suspensions, the court pointed out that Section 75.3 allows an employer to suspend an employee without pay for up to 30 days without pay. It said that it was not persuaded that it was improper to suspend Figueroa “on each of the four separate occasions when she was charged with misconduct.”
The Appellate Division distinguished Figueroa’s situation from that where the appointing authority “has deliberately severed charges for the sole purpose of imposing multiple suspensions.” It noted that the second, third and fourth suspensions resulted from events that occurred after Figueroa had returned from work following the earlier suspensions and resulted in new charges of misconduct being filed against her. However, said the court, Figueroa was still entitled to hearings on the third and fourth sets of charges filed against her because “her resignation neither terminated the proceedings” with respect to those charges nor “obviated [the] adjudication of them.”
Accordingly, the court ruled that hearings on these charges should be held. It also said that Figueroa “if so inclined [may] pursue an action for back pay.”
The Appellate Division pointed out, there was no evidence that Figueroa’s resignation constituted a waiver or abandonment of her claims for back salary.
Assigning a disabled police officer to a “desk job” held to be a reasonable accommodation
Assigning a disabled police officer to a “desk job” held to be a reasonable accommodation
Keever v Middletown, 145 F.3d 809
According to the U.S. Circuit Court of Appeals, Sixth Circuit, providing a “desk job” as a reasonable accommodation to a disabled police officer satisfied Americans with Disabilities Act [ADA] accommodation requirements despite the fact that the officer preferred a different assignment.
Richard T. Keever, a Middletown, Ohio police officer, contended that the desk assignment was demeaning and involved reduced responsibility. He said that he should have either been given a different shift or assigned to a detective position. He sued, contending claiming that the City failed to accommodate his disability, unlawfully harassed him about his disability, and constructively discharged him from the force by forcing him to retire.
The court disagreed, finding no ADA violation. ADA, the court observed, does not require an employer to give an employee his or her “preferred accommodation.” Under ADA the employer can make any reasonable accommodation it determines to be fit and appropriate.
According to the Sixth Circuit, “in determining whether an accommodation is reasonable, the employer must consider (1) the particular job involved, its purpose, and its essential functions; (2) the employee’s limitations and how those limitations can be overcome; (3) the effectiveness an accommodation would have in enabling the individual to perform the job; and (4) the preference of the employee,” citing 29 CFR Section 1630.9(a).
Essentially the court concluded that Keever was not “otherwise qualified” for the position of patrol officer, that he was not constructively discharged, and that he failed to establish a prima facie case of hostile work environment discrimination.
This ruling, made under federal law, may prove relevant to making “light duty” assignments of personnel receiving disability benefits under Section 207-a or Section 207-c of New York’s General Municipal Law [GML].
As was noted in City of Cohoes v Local 2562, 94 NY2d 686, “light duty” is based on the non-working individual’s medical condition and physical capacity rather than upon any contractual requirement. “GML Section 207-a is properly understood as being independent of contractual provisions governing regular duty, by giving full pay to fully or partially disabled firefighters performing no work or only `light duty.’“
In the words of the Court of Appeals:
"Our conclusion that appellants must submit medical evidence contesting the City's physician's findings in order to trigger a hearing is also supported by the holdings, in other contexts, that due process does not require a hearing on a claimed invasion of a property or liberty interest in governmental employment, until the employee has raised a genuine dispute on operative facts (see, Codd v Velger, 429 US 624, 627; Matter of Economico v Village of Pelham, 50 NY2d 120, 128; Matter of Dolan v Whalen, 49 NY2d 991, 993). Thus, the Appellate Division properly rejected appellants' claim of entitlement to a due process hearing before being ordered to return to duty.”
The Cohoes decision, however, implies that light duty could be viewed as a “permissive subject” of collective bargaining under the Taylor Law and ultimately made subject to arbitration under the terms of the agreement.
Keever v Middletown, 145 F.3d 809
According to the U.S. Circuit Court of Appeals, Sixth Circuit, providing a “desk job” as a reasonable accommodation to a disabled police officer satisfied Americans with Disabilities Act [ADA] accommodation requirements despite the fact that the officer preferred a different assignment.
Richard T. Keever, a Middletown, Ohio police officer, contended that the desk assignment was demeaning and involved reduced responsibility. He said that he should have either been given a different shift or assigned to a detective position. He sued, contending claiming that the City failed to accommodate his disability, unlawfully harassed him about his disability, and constructively discharged him from the force by forcing him to retire.
The court disagreed, finding no ADA violation. ADA, the court observed, does not require an employer to give an employee his or her “preferred accommodation.” Under ADA the employer can make any reasonable accommodation it determines to be fit and appropriate.
According to the Sixth Circuit, “in determining whether an accommodation is reasonable, the employer must consider (1) the particular job involved, its purpose, and its essential functions; (2) the employee’s limitations and how those limitations can be overcome; (3) the effectiveness an accommodation would have in enabling the individual to perform the job; and (4) the preference of the employee,” citing 29 CFR Section 1630.9(a).
Essentially the court concluded that Keever was not “otherwise qualified” for the position of patrol officer, that he was not constructively discharged, and that he failed to establish a prima facie case of hostile work environment discrimination.
This ruling, made under federal law, may prove relevant to making “light duty” assignments of personnel receiving disability benefits under Section 207-a or Section 207-c of New York’s General Municipal Law [GML].
As was noted in City of Cohoes v Local 2562, 94 NY2d 686, “light duty” is based on the non-working individual’s medical condition and physical capacity rather than upon any contractual requirement. “GML Section 207-a is properly understood as being independent of contractual provisions governing regular duty, by giving full pay to fully or partially disabled firefighters performing no work or only `light duty.’“
In the words of the Court of Appeals:
"Our conclusion that appellants must submit medical evidence contesting the City's physician's findings in order to trigger a hearing is also supported by the holdings, in other contexts, that due process does not require a hearing on a claimed invasion of a property or liberty interest in governmental employment, until the employee has raised a genuine dispute on operative facts (see, Codd v Velger, 429 US 624, 627; Matter of Economico v Village of Pelham, 50 NY2d 120, 128; Matter of Dolan v Whalen, 49 NY2d 991, 993). Thus, the Appellate Division properly rejected appellants' claim of entitlement to a due process hearing before being ordered to return to duty.”
The Cohoes decision, however, implies that light duty could be viewed as a “permissive subject” of collective bargaining under the Taylor Law and ultimately made subject to arbitration under the terms of the agreement.
State Comptroller’s report of the use of contacts for personal and other services by the NYS Department of Taxation and Finance
State Comptroller’s report of the use of contacts for personal and other services by the NYS Department of Taxation and Finance
Source: Office of the New York State Comptroller Thomas P. DiNapoli
During the three-year audit period, the Department of Taxation and Finance had 81 contracts for personal and miscellaneous services totaling about $563 million. More than 98 percent of this amount related to contracts for either information technology or banking services.
Auditors examined whether the department was adequately justifying the need to initially contract out for such services and periodically reassessing whether such contracts could be deferred, eliminated or reduced to save state funds.
The auditors found that the department was sometimes but not always performing these activities.
The full text of the audit report is posted on the Internet at: http://osc.state.ny.us/audits/allaudits/093010/09s38.pdf
Source: Office of the New York State Comptroller Thomas P. DiNapoli
During the three-year audit period, the Department of Taxation and Finance had 81 contracts for personal and miscellaneous services totaling about $563 million. More than 98 percent of this amount related to contracts for either information technology or banking services.
Auditors examined whether the department was adequately justifying the need to initially contract out for such services and periodically reassessing whether such contracts could be deferred, eliminated or reduced to save state funds.
The auditors found that the department was sometimes but not always performing these activities.
The full text of the audit report is posted on the Internet at: http://osc.state.ny.us/audits/allaudits/093010/09s38.pdf
US Department of Labor to conduct Family Medical Leave Act study
US Department of Labor to conduct Family Medical Leave Act study
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
On July 21, 2010 Labor Secretary Hilda Solis announced that next year the U.S. Department of Labor will conduct a study of how families use Family Medical Leave Act [FMLA] leave, as well as "information on regulatory changes, among other things."
In the past, DOL studies have been a precursor to regulatory changes. While there is no mandatory format, past FMLA studies have been a combination of surveys of significant FMLA stakeholders combined with public solicitations of comments. Interested parties should take this as a "heads-up" to begin to think about and prepare to address what you like about the current regulatory regime, and what you would like to see changed.
The announcement also suggests that the DOL does not intend on making any regulatory changes before the upcoming mid-term elections this November, something of a surprise (at least to me).
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
On July 21, 2010 Labor Secretary Hilda Solis announced that next year the U.S. Department of Labor will conduct a study of how families use Family Medical Leave Act [FMLA] leave, as well as "information on regulatory changes, among other things."
In the past, DOL studies have been a precursor to regulatory changes. While there is no mandatory format, past FMLA studies have been a combination of surveys of significant FMLA stakeholders combined with public solicitations of comments. Interested parties should take this as a "heads-up" to begin to think about and prepare to address what you like about the current regulatory regime, and what you would like to see changed.
The announcement also suggests that the DOL does not intend on making any regulatory changes before the upcoming mid-term elections this November, something of a surprise (at least to me).
July 22, 2010
Disciplinary actions held in absentia
Disciplinary actions held in absentia
Clarke v NYC Board of Education, App. Div., 251 A.D.2d 403
No one gave Fernando A. Clarke, a purchasing agent employed by the New York City Board of Education, permission to be absent from his job on February 14, 1994. To make matters worse, he never returned to work and didn’t bother to appear for a scheduled disciplinary hearing.
Clarke was served with charges of AWOL pursuant to Section 75 of the Civil Service Law. Although Clarke did not appear at the scheduled disciplinary hearing, the hearing officer found him guilty of the charges filed against him. The board adopted the findings and recommendations of the disciplinary hearing officer and terminated Clarke from his position.
The Appellate Division dismissed Clarke’s appeal challenging his termination. The court pointed out that Clarke (1) was aware of the time and place of the Section 75 hearing; (2) failed to attend the hearing; or (3) offer any proof on his own behalf.
The decision notes that the only evidence in the disciplinary hearing record was that Clarke had been continuously absent from his position without approval since February 14, 1994 and that he had not provided any satisfactory explanation for this absence. This, said the Appellate Division, was sufficient to provide the substantial evidence needed to support the board’s determination.
This decision demonstrates the fact that an appointing authority may proceed with a disciplinary hearing notwithstanding the fact that the accused employee fails to appear at the proceeding. However, before making a final determination in cases where the Section 75 disciplinary hearing was conducted in absentia, the appointing authority should make certain that:
1. The employee was served with the disciplinary charges and that he or she was advised of the time and place of the hearing;
2. A diligent effort was made to contact the individual on the day of the hearing to determine if there was a reasonable explanation for his or her failure to appear as scheduled before the hearing officer started the hearing;
3. A formal hearing was conducted and that the employer was required to introduce evidence proving its charges before the hearing officer;
4. A formal record of the hearing was made and a transcript provided to the appointing authority and, if requested, to the employee.
Finally, the employee must be advised of the appointing authority’s determination and his or her right of appeal.
Clarke v NYC Board of Education, App. Div., 251 A.D.2d 403
No one gave Fernando A. Clarke, a purchasing agent employed by the New York City Board of Education, permission to be absent from his job on February 14, 1994. To make matters worse, he never returned to work and didn’t bother to appear for a scheduled disciplinary hearing.
Clarke was served with charges of AWOL pursuant to Section 75 of the Civil Service Law. Although Clarke did not appear at the scheduled disciplinary hearing, the hearing officer found him guilty of the charges filed against him. The board adopted the findings and recommendations of the disciplinary hearing officer and terminated Clarke from his position.
The Appellate Division dismissed Clarke’s appeal challenging his termination. The court pointed out that Clarke (1) was aware of the time and place of the Section 75 hearing; (2) failed to attend the hearing; or (3) offer any proof on his own behalf.
The decision notes that the only evidence in the disciplinary hearing record was that Clarke had been continuously absent from his position without approval since February 14, 1994 and that he had not provided any satisfactory explanation for this absence. This, said the Appellate Division, was sufficient to provide the substantial evidence needed to support the board’s determination.
This decision demonstrates the fact that an appointing authority may proceed with a disciplinary hearing notwithstanding the fact that the accused employee fails to appear at the proceeding. However, before making a final determination in cases where the Section 75 disciplinary hearing was conducted in absentia, the appointing authority should make certain that:
1. The employee was served with the disciplinary charges and that he or she was advised of the time and place of the hearing;
2. A diligent effort was made to contact the individual on the day of the hearing to determine if there was a reasonable explanation for his or her failure to appear as scheduled before the hearing officer started the hearing;
3. A formal hearing was conducted and that the employer was required to introduce evidence proving its charges before the hearing officer;
4. A formal record of the hearing was made and a transcript provided to the appointing authority and, if requested, to the employee.
Finally, the employee must be advised of the appointing authority’s determination and his or her right of appeal.
Participating in an arbitration
Participating in an arbitration
Elmira Heights CSD v Ed. Support Staff Asso., App Div 250 A.D.2d 983, Motion for leave to appeal denied, 92 N.Y.2d 807
What should a party to an arbitration do if it believes that the controversy to be submitted to the arbitrator is not arbitrable? As the Elmira Heights decision points out, such an objection must be raised by applying for a stay of arbitration or it is waived.
The issue arose after the Elmira Heights Central School District, which was paying the entire cost of its health insurance plan for employees and retirees, negotiated a provision in the Taylor Agreement between the parties, Section 16.1, requiring employees to pay a “percentage of the annual premium for their health insurance coverage.” In contrast, health insurance for employees who retired was covered in another section of the same agreement, Section 16.14. Section 16.14 made no provision for health insurance contributions to be paid by individuals upon their retirement.
In January 1995 the school board adopted a resolution requiring all employees to pay 10 percent of the cost of their health insurance. The superintendent advised all retirees that they, too, would be required to pay 10 percent of the cost of their health insurance. The retirees filed a contract grievance complaining that the imposition of such a payment violated the terms and conditions of Section 16.14.
Ultimately the matter was submitted for arbitration. The arbitrator first found that the grievance was arbitrable. In the arbitration that followed, the arbitrator concluded that the district had violated the agreement when it unilaterally imposed a “co-pay for the health care plan for its retirees.” The district was directed to refund any contributions for premiums made by retirees.
Next the district filed an Article 75 action to vacate the award. Supreme Court granted the district’s petition, finding that the arbitrator “exceeded his authority,” and that the award was contrary to law. The Association appealed the decision. At the Appellate Division the district argued that the retirees were neither members of the negotiating unit nor employees as defined in the collective bargaining agreement and thus the arbitrator exceed his authority in ordering it to refund the retirees’ contributions.
The Appellate Division said that what the district was really arguing was that “the arbitrator did not have the power to decide the question at issue and, therefore, there was nothing to arbitrate.” The court ruled that such an argument cannot be raised in a motion to vacate the arbitration award; it must be raised in a motion to stay the arbitration in the first instance.
As to whether or not the arbitrator exceeded his authority, the decision notes that an arbitrator exceeds his or her power “only if he or she gave a completely irrational construction to the provision in dispute and, in effect, made a new contract for the parties.”
Here, said the court, the agreement provides for employee contributions for health insurance but is silent with respect to such contributions by retirees. The arbitrator considered the parties’ past practice and concluded that the district “inappropriately required its retirees to contribute to the cost of their health care ... a determination ... [the arbitrator] was well within his right to make.”
Pointing out that the fact that a different construction might have been given to Section 16.14 does not mean that the arbitrator rendered a completely irrational interpretation and thereby crafted a new contract for the parties, the Appellate Division denied the district’s application to vacate the award.
Elmira Heights CSD v Ed. Support Staff Asso., App Div 250 A.D.2d 983, Motion for leave to appeal denied, 92 N.Y.2d 807
What should a party to an arbitration do if it believes that the controversy to be submitted to the arbitrator is not arbitrable? As the Elmira Heights decision points out, such an objection must be raised by applying for a stay of arbitration or it is waived.
The issue arose after the Elmira Heights Central School District, which was paying the entire cost of its health insurance plan for employees and retirees, negotiated a provision in the Taylor Agreement between the parties, Section 16.1, requiring employees to pay a “percentage of the annual premium for their health insurance coverage.” In contrast, health insurance for employees who retired was covered in another section of the same agreement, Section 16.14. Section 16.14 made no provision for health insurance contributions to be paid by individuals upon their retirement.
In January 1995 the school board adopted a resolution requiring all employees to pay 10 percent of the cost of their health insurance. The superintendent advised all retirees that they, too, would be required to pay 10 percent of the cost of their health insurance. The retirees filed a contract grievance complaining that the imposition of such a payment violated the terms and conditions of Section 16.14.
Ultimately the matter was submitted for arbitration. The arbitrator first found that the grievance was arbitrable. In the arbitration that followed, the arbitrator concluded that the district had violated the agreement when it unilaterally imposed a “co-pay for the health care plan for its retirees.” The district was directed to refund any contributions for premiums made by retirees.
Next the district filed an Article 75 action to vacate the award. Supreme Court granted the district’s petition, finding that the arbitrator “exceeded his authority,” and that the award was contrary to law. The Association appealed the decision. At the Appellate Division the district argued that the retirees were neither members of the negotiating unit nor employees as defined in the collective bargaining agreement and thus the arbitrator exceed his authority in ordering it to refund the retirees’ contributions.
The Appellate Division said that what the district was really arguing was that “the arbitrator did not have the power to decide the question at issue and, therefore, there was nothing to arbitrate.” The court ruled that such an argument cannot be raised in a motion to vacate the arbitration award; it must be raised in a motion to stay the arbitration in the first instance.
As to whether or not the arbitrator exceeded his authority, the decision notes that an arbitrator exceeds his or her power “only if he or she gave a completely irrational construction to the provision in dispute and, in effect, made a new contract for the parties.”
Here, said the court, the agreement provides for employee contributions for health insurance but is silent with respect to such contributions by retirees. The arbitrator considered the parties’ past practice and concluded that the district “inappropriately required its retirees to contribute to the cost of their health care ... a determination ... [the arbitrator] was well within his right to make.”
Pointing out that the fact that a different construction might have been given to Section 16.14 does not mean that the arbitrator rendered a completely irrational interpretation and thereby crafted a new contract for the parties, the Appellate Division denied the district’s application to vacate the award.
Use of polygraph tests in an administrative disciplinary hearing
Use of polygraph tests in an administrative disciplinary hearing
Ost v Town of Woodstock, Appellate Division, 251 A.D.2d 724, Motion for leave to appeal denied, 92 N.Y.2d 817
One of the issues raised in the Ost case was the admission of testimony concerning a polygraph [lie-detector] test during a Section 75 disciplinary hearing.
Shawn Ost, a Town of Woodstock police officer, was terminated from his position for allegedly using his police vehicle to “give a young civilian woman a ride to her home outside the geographical boundaries of the Town, without authorization and subjected her to unwanted sexual contact” [the August 1994 incident] and other charges and specifications concerning other alleged misconduct involving the same woman about a year later.
Ost argued that the disciplinary hearing “was tainted by the admission of testimony regarding a polygraph test” of the [young woman] involved in the incident. The Appellate Division said that such testimony may be considered in a Section 75 disciplinary hearing “if it is otherwise material and relevant, so long as there is ... as there was in this instance ... substantial evidence of the reliability of the machine and the qualifications of the operator.”
As to Ost’s complaint that “he was not offered an opportunity to take a similar test,” the court commented that although Ost indicated that he would be willing to submit to such an examination, he never asked for a test to be scheduled or take any steps to arrange for one on his own.
Another issue that was considered by the Appellate Division was the Town’s decision to dismiss Ost in the face of the hearing officer’s recommendation that he be reprimanded and suspended for 30 days without pay. It noted that initially the Supreme Court had rejected all of Ost’s arguments but one -- that the town had failed to set forth the rationale underlying its departure from the hearing officer’s findings and recommended penalty.
Subsequently the town explained its reasons for its decision -- it found that Ost had lied about his activities in August 1995, and “his testimony regarding the earlier incident was incredible as well.” The Appellate Division affirmed the town’s decision as to guilt and the penalty it imposed on Ost. It said that “reversal of the penalty would not be warranted for the Board explicitly found ... that [Ost’s] actions in August 1995, alone, necessitated his termination from the police force.”
Ost v Town of Woodstock, Appellate Division, 251 A.D.2d 724, Motion for leave to appeal denied, 92 N.Y.2d 817
One of the issues raised in the Ost case was the admission of testimony concerning a polygraph [lie-detector] test during a Section 75 disciplinary hearing.
Shawn Ost, a Town of Woodstock police officer, was terminated from his position for allegedly using his police vehicle to “give a young civilian woman a ride to her home outside the geographical boundaries of the Town, without authorization and subjected her to unwanted sexual contact” [the August 1994 incident] and other charges and specifications concerning other alleged misconduct involving the same woman about a year later.
Ost argued that the disciplinary hearing “was tainted by the admission of testimony regarding a polygraph test” of the [young woman] involved in the incident. The Appellate Division said that such testimony may be considered in a Section 75 disciplinary hearing “if it is otherwise material and relevant, so long as there is ... as there was in this instance ... substantial evidence of the reliability of the machine and the qualifications of the operator.”
As to Ost’s complaint that “he was not offered an opportunity to take a similar test,” the court commented that although Ost indicated that he would be willing to submit to such an examination, he never asked for a test to be scheduled or take any steps to arrange for one on his own.
Another issue that was considered by the Appellate Division was the Town’s decision to dismiss Ost in the face of the hearing officer’s recommendation that he be reprimanded and suspended for 30 days without pay. It noted that initially the Supreme Court had rejected all of Ost’s arguments but one -- that the town had failed to set forth the rationale underlying its departure from the hearing officer’s findings and recommended penalty.
Subsequently the town explained its reasons for its decision -- it found that Ost had lied about his activities in August 1995, and “his testimony regarding the earlier incident was incredible as well.” The Appellate Division affirmed the town’s decision as to guilt and the penalty it imposed on Ost. It said that “reversal of the penalty would not be warranted for the Board explicitly found ... that [Ost’s] actions in August 1995, alone, necessitated his termination from the police force.”
July 21, 2010
Governor Paterson revokes his proclamations calling for extraordinary legislative sessions
Governor Paterson revokes his proclamations calling for extraordinary legislative sessions
Source: New York State Office of the Governor
On July 21, 2010, Governor David A. Paterson revoked his proclamations for the extraordinary sessions he issued on January 17, 2010 and June 26, 2010.
The Governor explained that “This revocation lays to rest spurious claims by both the Assembly and Senate that any prior extraordinary session convened by gubernatorial proclamation remains in progress."
Governor Paterson said that he stands "ready to convene a new extraordinary session of the Legislature pursuant to his authority under Article IV, Section 3 of the Constitution should he deem such an action necessary in the coming weeks.”
According to the Governor’s Office's statement, Article IV, Section 3 of the New York State Constitution gives the Governor broad and unambiguous legal authority "to convene the legislature, or the senate only, on extraordinary occasions."
This provision, said the Governor's Office, has been part of the New York State Constitution since it was first adopted on April 20, 1777.* “Since that time – more than 230 years and four constitutions later** – the provision remains virtually unchanged and imposes no requirement on the Governor to seek legislative permission before convening an extraordinary session.”
* Article XVIII of The Constitution of 1777, in pertinent part, provides that “[The Governor] shall have power to convene the assembly and senate on extraordinary occasions; to prorogue them [i.e., discontinue a session of a legislative body without dissolving it] from time to time, provided such prorogations shall not exceed sixty days in the space of any one year…."
In 1812, then Governor Daniel D. Tompkins [1807-1817; 1817-1825], pursuant to the authority set out in Article XVIII of the Constitution of 1777, "prorogued the legislature" -- the only recorded instance of a New York State governor exercising such power. The full text of the Constitution of 1777 is posted on the Internet at: http://www.nhinet.org/ccs/docs/ny-1777.htm
** New York State has had five constitutions, adopted in 1777, 1821, 1846, 1894, and 1938, respectively.
The full text of the Governor’s Office's statement is posted on the Internet at: http://www.ny.gov/governor/press/072110Session.html
Source: New York State Office of the Governor
On July 21, 2010, Governor David A. Paterson revoked his proclamations for the extraordinary sessions he issued on January 17, 2010 and June 26, 2010.
The Governor explained that “This revocation lays to rest spurious claims by both the Assembly and Senate that any prior extraordinary session convened by gubernatorial proclamation remains in progress."
Governor Paterson said that he stands "ready to convene a new extraordinary session of the Legislature pursuant to his authority under Article IV, Section 3 of the Constitution should he deem such an action necessary in the coming weeks.”
According to the Governor’s Office's statement, Article IV, Section 3 of the New York State Constitution gives the Governor broad and unambiguous legal authority "to convene the legislature, or the senate only, on extraordinary occasions."
This provision, said the Governor's Office, has been part of the New York State Constitution since it was first adopted on April 20, 1777.* “Since that time – more than 230 years and four constitutions later** – the provision remains virtually unchanged and imposes no requirement on the Governor to seek legislative permission before convening an extraordinary session.”
* Article XVIII of The Constitution of 1777, in pertinent part, provides that “[The Governor] shall have power to convene the assembly and senate on extraordinary occasions; to prorogue them [i.e., discontinue a session of a legislative body without dissolving it] from time to time, provided such prorogations shall not exceed sixty days in the space of any one year…."
In 1812, then Governor Daniel D. Tompkins [1807-1817; 1817-1825], pursuant to the authority set out in Article XVIII of the Constitution of 1777, "prorogued the legislature" -- the only recorded instance of a New York State governor exercising such power. The full text of the Constitution of 1777 is posted on the Internet at: http://www.nhinet.org/ccs/docs/ny-1777.htm
** New York State has had five constitutions, adopted in 1777, 1821, 1846, 1894, and 1938, respectively.
The full text of the Governor’s Office's statement is posted on the Internet at: http://www.ny.gov/governor/press/072110Session.html
Writ of mandamus unavailable to an individual seeking the removal of material from his or her personnel file where discretionary action involved
Writ of mandamus unavailable to an individual seeking the removal of material from his or her personnel file where discretionary action involved
Hazen v Board of Educ. of City School Dist. of City of New York, 2010 NY Slip Op 06142, Decided on July 20, 2010, Appellate Division, First Department
Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? The courts have held that characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to a Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. This appears to be the rationale underlying the ruling of the Appellate Division in Hazen.
Wendy Hazen filed a petition pursuant to CPLR Article 78 seeking a court order directing the New York City Board of Education “to expunge certain [critical] letters from [her] personnel file. Supreme Court denied Hazen’s petition and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division explained that Hazen sought to compel the removal of the letters to which she objected from her file, which was an action in the nature of mandamus.
However, said the court, placing the letters in her personnel file and deciding whether or not to remove then when Hazen demand their being expunged, are essentially discretionary actions. Mandamus* is not an available remedy in situations involving an administrator’s discretionary action. It is an “extraordinary remedy” limited in its application to vindicate an individual's clear legal entitlement to a course of action.
Further, said the court, Hazen was not entitled to a hearing in this matter as the relevant provision in the controlling collective bargaining agreement sets out the teacher's due process rights to review and challenge entries in her personnel file. The court then found that “there is no reason to conclude that [the school district] failed to follow the procedural requirements imposed by that contract or otherwise acted unlawfully.
In addition, the Appellate Division noted that the actions objected to by Hazen “were not disciplinary or penalty measures related to the filing or disposition of formal charges” and thus she was not entitled to a hearing pursuant to Education Law §3020-a.
* Latin for "We command." The writ of mandamus is an order from a superior body to an inferior body ordering the inferior body [or an individual] to perform, or refrain from performing, a particular act.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06142.htm
Hazen v Board of Educ. of City School Dist. of City of New York, 2010 NY Slip Op 06142, Decided on July 20, 2010, Appellate Division, First Department
Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? The courts have held that characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to a Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. This appears to be the rationale underlying the ruling of the Appellate Division in Hazen.
Wendy Hazen filed a petition pursuant to CPLR Article 78 seeking a court order directing the New York City Board of Education “to expunge certain [critical] letters from [her] personnel file. Supreme Court denied Hazen’s petition and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division explained that Hazen sought to compel the removal of the letters to which she objected from her file, which was an action in the nature of mandamus.
However, said the court, placing the letters in her personnel file and deciding whether or not to remove then when Hazen demand their being expunged, are essentially discretionary actions. Mandamus* is not an available remedy in situations involving an administrator’s discretionary action. It is an “extraordinary remedy” limited in its application to vindicate an individual's clear legal entitlement to a course of action.
Further, said the court, Hazen was not entitled to a hearing in this matter as the relevant provision in the controlling collective bargaining agreement sets out the teacher's due process rights to review and challenge entries in her personnel file. The court then found that “there is no reason to conclude that [the school district] failed to follow the procedural requirements imposed by that contract or otherwise acted unlawfully.
In addition, the Appellate Division noted that the actions objected to by Hazen “were not disciplinary or penalty measures related to the filing or disposition of formal charges” and thus she was not entitled to a hearing pursuant to Education Law §3020-a.
* Latin for "We command." The writ of mandamus is an order from a superior body to an inferior body ordering the inferior body [or an individual] to perform, or refrain from performing, a particular act.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06142.htm
Divorced retiree may enroll his or her new spouse for dependent coverage in the retiree’s health insurance plan as provided by the CBA
Divorced retiree may enroll his or her new spouse for dependent coverage in the retiree’s health insurance plan as provided by the CBA
Giblin v Village of Johnson City, 2010 NY Slip Op 06133, Decided on July 15, 2010, Appellate Division, Third Department
When William Giblin retired from his position with the Village of Johnson City, he continued his individual and dependent health insurance for himself and his then-wife pursuant to the terms of the relevant collective bargaining agreement [CBA]. The controlling provisions in the CBA provided that "[a]ll present retirees … and all members who retire in the future shall continue to receive Blue Cross, Blue Shield Major Medical Insurance coverage for themselves and their dependents (or comparable coverage as may then be in effect)."
Giblin and his then-wife divorced some time later. As the dependent health insurance coverage for Giblin’s former wife automatically terminated upon divorce, Johnson City terminated Giblin’s “family health insurance plan, switching him to an individual coverage plan.”
Some time later Giblin remarried and he asked Johnson City to enroll his new spouse in the City’s health insurance plan as his dependent. Johnson City refused to do so and advised Giblin that he “no longer had family coverage and was not entitled to change his [individual coverage] plan to family coverage.”
Giblin sued, seeking a court order to annul the City’s determination and a declaration that it was required to provide dependent health insurance coverage to his new spouse. Supreme Court annulled the City’s denial of Giblin’s request and directed the City to extend health insurance benefits to Giblin new spouse as his dependent. The City appealed.
The Appellate Division commenced its consideration of the City’s appeal by noting that while Giblin is challenging an action by a municipality, the damages claimed flow from an alleged breach of contract. Accordingly, said the court, "the claim must be resolved through the application of traditional rules of contract law" rather than under CPLR Article 78.
The court then concluded that the City had “breached its contractual obligation” to provide health insurance benefits to Giblin new spouse. Pointing out that the CBA states that Giblin, as a retiree, "shall continue to receive" health insurance coverage for himself and his dependents…” the court observed that “Nothing in the agreement freezes benefits so as to limit coverage to people who are dependents of a retiree at the time of retirement.”
Rejecting the City’s argument that the word "continue" in the CBA supports its determination, the Appellate Division said that “when the whole sentence is read in context it says that insurance coverage will continue for retirees and their dependents, not that retirees will continue to receive the same type of coverage (family or individual).”
Further, the Appellate Division commented that the CBA did not “specifically prohibit retirees from changing their enrollment from individual to family coverage or vice versa.”
The court explained that although Giblin’s former wife was no longer eligible for coverage when they divorced, Giblin “did not request a change to individual coverage and, when he remarried, he merely desired to continue receiving family coverage as he had at the time of his retirement.”
Reading the plain language of the CBA, the Appellate Division decided that Giblin was entitled to a declaration that City must provide dependent health insurance coverage to Giblin new spouse.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06133.htm
Giblin v Village of Johnson City, 2010 NY Slip Op 06133, Decided on July 15, 2010, Appellate Division, Third Department
When William Giblin retired from his position with the Village of Johnson City, he continued his individual and dependent health insurance for himself and his then-wife pursuant to the terms of the relevant collective bargaining agreement [CBA]. The controlling provisions in the CBA provided that "[a]ll present retirees … and all members who retire in the future shall continue to receive Blue Cross, Blue Shield Major Medical Insurance coverage for themselves and their dependents (or comparable coverage as may then be in effect)."
Giblin and his then-wife divorced some time later. As the dependent health insurance coverage for Giblin’s former wife automatically terminated upon divorce, Johnson City terminated Giblin’s “family health insurance plan, switching him to an individual coverage plan.”
Some time later Giblin remarried and he asked Johnson City to enroll his new spouse in the City’s health insurance plan as his dependent. Johnson City refused to do so and advised Giblin that he “no longer had family coverage and was not entitled to change his [individual coverage] plan to family coverage.”
Giblin sued, seeking a court order to annul the City’s determination and a declaration that it was required to provide dependent health insurance coverage to his new spouse. Supreme Court annulled the City’s denial of Giblin’s request and directed the City to extend health insurance benefits to Giblin new spouse as his dependent. The City appealed.
The Appellate Division commenced its consideration of the City’s appeal by noting that while Giblin is challenging an action by a municipality, the damages claimed flow from an alleged breach of contract. Accordingly, said the court, "the claim must be resolved through the application of traditional rules of contract law" rather than under CPLR Article 78.
The court then concluded that the City had “breached its contractual obligation” to provide health insurance benefits to Giblin new spouse. Pointing out that the CBA states that Giblin, as a retiree, "shall continue to receive" health insurance coverage for himself and his dependents…” the court observed that “Nothing in the agreement freezes benefits so as to limit coverage to people who are dependents of a retiree at the time of retirement.”
Rejecting the City’s argument that the word "continue" in the CBA supports its determination, the Appellate Division said that “when the whole sentence is read in context it says that insurance coverage will continue for retirees and their dependents, not that retirees will continue to receive the same type of coverage (family or individual).”
Further, the Appellate Division commented that the CBA did not “specifically prohibit retirees from changing their enrollment from individual to family coverage or vice versa.”
The court explained that although Giblin’s former wife was no longer eligible for coverage when they divorced, Giblin “did not request a change to individual coverage and, when he remarried, he merely desired to continue receiving family coverage as he had at the time of his retirement.”
Reading the plain language of the CBA, the Appellate Division decided that Giblin was entitled to a declaration that City must provide dependent health insurance coverage to Giblin new spouse.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06133.htm
A government official performing a discretionary function is entitled to qualified immunity unless violative of an individual's statutory or constitutional rights
Cavanaugh v Doherty, Appellate Division, 243 A.D.2d 92
Erin Cavanaugh, an Assistant Public Relations Aide employed by the State Department of Correctional Services and Thomas Doherty, Appointment Secretary in the Executive Department, became involved in a political argument at a restaurant. Their oral exchanges culminated in Cavanaugh calling Doherty an “explicitve deleted.” Doherty allegedly responded that “he would 'have her job in the morning'“.
Forty-eight hours later Cavanaugh was unemployed.
Cavanaugh sued, claiming a breach of her employment contract; abusive discharge; violation of her civil rights and other wrongdoings by Doherty, James Flateau, her immediate supervisor and John Patterson, a Correctional Services’ deputy commissioner who allegedly ordered Flateau to fire Cavanaugh because of her retort during her off-duty argument with Doherty.
Although at this stage of the proceeding the appeal essentially concerned challenges by the parties to the Supreme Court’s allowing certain claims and defenses to survive and dismissing others, the Appellate Division addressed a number of significant issues in the course of reviewing the matter.
One is of particular importance, addressing the concept of a public official’s “qualified immunity.”
The court said that a government official performing a discretionary function is entitled to qualified immunity provided his or her conduct does not violate [an individual’s] clearly established statutory or constitutional rights of which a reasonable person would have know....”
Commenting that the official has the burden of demonstrating that his or her acts enjoy a qualified immunity, the Appellate Division said that although Flateau was acting within the ambit of his official duties, as he was instructed to terminate Cavanaugh, “none of the defendants has established that they had an objectively reasonable belief that their actions did not violate clearly established rights of [Cavanaugh], particularly as it appears that [Cavanaugh’s] termination was retributive in nature for the personal affront to Doherty ... and because each was aware of or should have been aware of [Cavanaugh’s] First Amendment rights.”
The court concluded that “the defendants have not established entitlement to qualified immunity,” and reinstated Cavanaugh’s civil rights violation claims.
In contrast, the Appellate Division said that while Cavanaugh’s allegations that her employment was intentionally terminated without justification and she suffered damages as a result was sufficient to allege a prima facie tort against Doherty and Patterson, this claim against Flateau should be dismissed because, said the court, “he was acting within the ambit of his official duties.”
The opinion also notes that pubic policy prohibits the maintenance of a suit against the State or, by extension, an official acting in his or her official capacity for prima facie tort.”
The Appellate Division pointed out that two of Cavanaugh’s claims were brought against the defendants in their “official capacity.” These consisted of an alleged breach of her employment contract and an alleged violation of Section 201-d of the Labor Law. The court said that the Supreme Court properly ruled that it did not have jurisdiction over these causes of action and that they should have been filed with the Court of Claims.
Cavanaugh v Doherty, Appellate Division, 243 A.D.2d 92
Erin Cavanaugh, an Assistant Public Relations Aide employed by the State Department of Correctional Services and Thomas Doherty, Appointment Secretary in the Executive Department, became involved in a political argument at a restaurant. Their oral exchanges culminated in Cavanaugh calling Doherty an “explicitve deleted.” Doherty allegedly responded that “he would 'have her job in the morning'“.
Forty-eight hours later Cavanaugh was unemployed.
Cavanaugh sued, claiming a breach of her employment contract; abusive discharge; violation of her civil rights and other wrongdoings by Doherty, James Flateau, her immediate supervisor and John Patterson, a Correctional Services’ deputy commissioner who allegedly ordered Flateau to fire Cavanaugh because of her retort during her off-duty argument with Doherty.
Although at this stage of the proceeding the appeal essentially concerned challenges by the parties to the Supreme Court’s allowing certain claims and defenses to survive and dismissing others, the Appellate Division addressed a number of significant issues in the course of reviewing the matter.
One is of particular importance, addressing the concept of a public official’s “qualified immunity.”
The court said that a government official performing a discretionary function is entitled to qualified immunity provided his or her conduct does not violate [an individual’s] clearly established statutory or constitutional rights of which a reasonable person would have know....”
Commenting that the official has the burden of demonstrating that his or her acts enjoy a qualified immunity, the Appellate Division said that although Flateau was acting within the ambit of his official duties, as he was instructed to terminate Cavanaugh, “none of the defendants has established that they had an objectively reasonable belief that their actions did not violate clearly established rights of [Cavanaugh], particularly as it appears that [Cavanaugh’s] termination was retributive in nature for the personal affront to Doherty ... and because each was aware of or should have been aware of [Cavanaugh’s] First Amendment rights.”
The court concluded that “the defendants have not established entitlement to qualified immunity,” and reinstated Cavanaugh’s civil rights violation claims.
In contrast, the Appellate Division said that while Cavanaugh’s allegations that her employment was intentionally terminated without justification and she suffered damages as a result was sufficient to allege a prima facie tort against Doherty and Patterson, this claim against Flateau should be dismissed because, said the court, “he was acting within the ambit of his official duties.”
The opinion also notes that pubic policy prohibits the maintenance of a suit against the State or, by extension, an official acting in his or her official capacity for prima facie tort.”
The Appellate Division pointed out that two of Cavanaugh’s claims were brought against the defendants in their “official capacity.” These consisted of an alleged breach of her employment contract and an alleged violation of Section 201-d of the Labor Law. The court said that the Supreme Court properly ruled that it did not have jurisdiction over these causes of action and that they should have been filed with the Court of Claims.
The doctrine of collateral estoppel bars relitigating a complaint based on the same issues as earlier litigated
The doctrine of collateral estoppel bars relitigating a complaint based on the same issues as earlier litigated
Parker v Blauvelt Volunteer Fire Company, App. Div., 251 A.D.2d 389 [Affirmed on basis of collateral estoppel, 93 N.Y.2d 343]
It is a basic principle of law that an individual may not relitigate a claim that he or she had early presented to, and had been considered and decided by, the courts.
Kimball Parker was dismissed from his position as a volunteer firefighter with Blauvelt for insubordination following a disciplinary hearing conducted by the Orangetown Town Board.
Parker challenged his dismissal pursuant to Article 78 of the Civil Practice Law and Rules, seeking an order directing his reinstatement and monetary damages. As part of his Article 78 action Parker complained that his 42 USC 1983 civil rights had been violated.
His 42 USC 1983 civil rights action was dismissed without prejudice by a Supreme Court justice while his Article 78 appeal from his termination was transferred to the Appellate Division. The Appellate Division considered and rejected Parker’s Article 78 petition, confirming his dismissal from the fire company by the town board. [Parker v Blauvelt Volunteer Fire Company, 222 AD2d 437].
Parker then commenced a civil rights action, essentially raising the same issues previously considered in his Article 78 action. Blauvelt moved for summary judgment and the Appellate Division agreed on the grounds that the issues and facts raised by Parker were the same in both actions.
The court noted that Parker had a “full and fair opportunity to challenge and defend against them” and therefore, even if the remedy sought under 42 USC 1983 was different from those he had sought in his Article 78 action, further consideration of his 42 USC 1983 claims were barred by the doctrine of res judicata [a matter judicially acted upon] and collateral estoppel [there was a conclusive judgment in another action].
Parker v Blauvelt Volunteer Fire Company, App. Div., 251 A.D.2d 389 [Affirmed on basis of collateral estoppel, 93 N.Y.2d 343]
It is a basic principle of law that an individual may not relitigate a claim that he or she had early presented to, and had been considered and decided by, the courts.
Kimball Parker was dismissed from his position as a volunteer firefighter with Blauvelt for insubordination following a disciplinary hearing conducted by the Orangetown Town Board.
Parker challenged his dismissal pursuant to Article 78 of the Civil Practice Law and Rules, seeking an order directing his reinstatement and monetary damages. As part of his Article 78 action Parker complained that his 42 USC 1983 civil rights had been violated.
His 42 USC 1983 civil rights action was dismissed without prejudice by a Supreme Court justice while his Article 78 appeal from his termination was transferred to the Appellate Division. The Appellate Division considered and rejected Parker’s Article 78 petition, confirming his dismissal from the fire company by the town board. [Parker v Blauvelt Volunteer Fire Company, 222 AD2d 437].
Parker then commenced a civil rights action, essentially raising the same issues previously considered in his Article 78 action. Blauvelt moved for summary judgment and the Appellate Division agreed on the grounds that the issues and facts raised by Parker were the same in both actions.
The court noted that Parker had a “full and fair opportunity to challenge and defend against them” and therefore, even if the remedy sought under 42 USC 1983 was different from those he had sought in his Article 78 action, further consideration of his 42 USC 1983 claims were barred by the doctrine of res judicata [a matter judicially acted upon] and collateral estoppel [there was a conclusive judgment in another action].
July 20, 2010
Having obtain the relief sought on the basis of one of several arguments further appeal is precluded as the individual is no longer an aggrieved party
Having obtain the relief sought on the basis of one of several arguments further appeal is precluded as the individual is no longer an aggrieved party
Hoover v DiNapoli, 2010 NY Slip Op 06127, Decided on July 15, 2010, Appellate Division, Third Department
David A. Hoover worked part time as a labor relations specialist for Erie 1 BOCES from February 1, 1988 through October 31, 1995 and obtained member service credit in the New York State and Local Employees' Retirement System in connection with that employment.
In April 2008, the State Comptroller announced new regulations for the Retirement System specifically defining how local governments and school districts should classify professional service providers as employees or independent contractors.
Hoover was told that under the new regulations, his member service credit for his work at BOCES between 1988 and 1995 was revoked as he had served with the BOCES as an independent contractor rather than an employee. Hoover filed an Article 78 petition seeking restoration of his member service credit contending that:
1. Rescinding such credit constituted “an improper retroactive application of the new regulations in violation of the NY Constitution;”
2. A violation of his due process rights; and
3. The Comptroller’s decision to invalidate his member service credit was arbitrary and capricious.
Supreme Court dismissed Hoover's state constitutional claims for failure to exhaust his administrative remedies, but, nevertheless issued a decision on the merits granting his petition on the basis of his due process claim. The court order provided that "the determination to revoke [Hoover's] service credit with Erie 1 BOCES for the years prior to 1995 is vacated and annulled."
Despite having prevailed in that he had obtained the remedy that he had sought, Hoover appealed the Supreme Court's judgment.
The Appellate Division dismissed his appeal, noted that having "obtained the full relief sought … annulment of the Comptroller's determination and reinstatement of his service credit," Hoover is no longer an aggrieved party. The fact that he had asserted multiple grounds upon which he contended that the relief he demanded could be granted, his having prevailed on the basis of one of the theories he advanced rendered consideration of his other arguments moot.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06127.htm
Hoover v DiNapoli, 2010 NY Slip Op 06127, Decided on July 15, 2010, Appellate Division, Third Department
David A. Hoover worked part time as a labor relations specialist for Erie 1 BOCES from February 1, 1988 through October 31, 1995 and obtained member service credit in the New York State and Local Employees' Retirement System in connection with that employment.
In April 2008, the State Comptroller announced new regulations for the Retirement System specifically defining how local governments and school districts should classify professional service providers as employees or independent contractors.
Hoover was told that under the new regulations, his member service credit for his work at BOCES between 1988 and 1995 was revoked as he had served with the BOCES as an independent contractor rather than an employee. Hoover filed an Article 78 petition seeking restoration of his member service credit contending that:
1. Rescinding such credit constituted “an improper retroactive application of the new regulations in violation of the NY Constitution;”
2. A violation of his due process rights; and
3. The Comptroller’s decision to invalidate his member service credit was arbitrary and capricious.
Supreme Court dismissed Hoover's state constitutional claims for failure to exhaust his administrative remedies, but, nevertheless issued a decision on the merits granting his petition on the basis of his due process claim. The court order provided that "the determination to revoke [Hoover's] service credit with Erie 1 BOCES for the years prior to 1995 is vacated and annulled."
Despite having prevailed in that he had obtained the remedy that he had sought, Hoover appealed the Supreme Court's judgment.
The Appellate Division dismissed his appeal, noted that having "obtained the full relief sought … annulment of the Comptroller's determination and reinstatement of his service credit," Hoover is no longer an aggrieved party. The fact that he had asserted multiple grounds upon which he contended that the relief he demanded could be granted, his having prevailed on the basis of one of the theories he advanced rendered consideration of his other arguments moot.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06127.htm
Appeals to the Commissioner must be filed within 30 days of the act or omission for which redress is sought absent the Commissioner excusing the delay
Appeals to the Commissioner must be filed within 30 days of the act or omission for which redress is sought absent the Commissioner excusing the delay
Appeal of Michael P. Thomas seeking the removal of High School Superintendent Francesca Pena, Decisions of the Commissioner of Education, Decision No. 16,090
On September 4, 2008, Michael P. Thomas a certified, tenured mathematics teacher in the New York City school district, asked Superintendent Francesca Pena to file charges against Principal David J. Jimenez for certain actions, including alleged retaliatory actions against Thomas for reporting the misuse of Title I funds and scoring irregularities on a Regents examination.
On or about November 20 2008, Pena advised Thomas that she had referred the matter to the Special Commissioner of Investigation for the New York City School District. In May 2009, Thomas wrote Pena requesting the results of the investigation, Pena did not respond to Thomas.
Thomas appealed to the Commissioner of Education seeking the removal of Pena for “neglect of duty,” contending that she had failed “to take all necessary steps to ensure the integrity of community district operations.” He also asked the Commissioner to remove other administrators “for allegedly falsifying the results of a Regents examination, retaliating against [him] for reporting such alleged scoring irregularities and the misuse of Title I funds.”
The Commissioner dismissed Thomas’ appeal as untimely.
The Commissioner said that Thomas asked that Pena investigate his allegations in 2008. After Pena informed him that she referred matter to SCI in November 2008, Thomas asked Pena for the results of the investigation in May 2009 and asked her to respond within 10 business days. Thomas argued on May 28, 2009, which he contended was the 10th business day after Pena had received his letter, the 30-day period available to him to commence his appeal began to run.
The Commissioner disagreed with Thomas’ argument. He said that Pena responded to Thomas in November 2008 “with respect to the actions complained of in this appeal.” Accordingly, said the Commissioner, Thomas’ May 2009 letter, ”like a request for reconsideration, does not extend the time within which an appeal must be commenced.”
The Commissioner explained that “An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown,” citing 8 NYCRR §275.16. As the affidavits of service reflect that the petition was served on the several respondent administrators in 2009 and the events complained of occurred more than 30 days prior to those dates, the Commissioner ruled that appeal filed by Thomas was untimely.
The Commissioner’s decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16090.htm
Appeal of Michael P. Thomas seeking the removal of High School Superintendent Francesca Pena, Decisions of the Commissioner of Education, Decision No. 16,090
On September 4, 2008, Michael P. Thomas a certified, tenured mathematics teacher in the New York City school district, asked Superintendent Francesca Pena to file charges against Principal David J. Jimenez for certain actions, including alleged retaliatory actions against Thomas for reporting the misuse of Title I funds and scoring irregularities on a Regents examination.
On or about November 20 2008, Pena advised Thomas that she had referred the matter to the Special Commissioner of Investigation for the New York City School District. In May 2009, Thomas wrote Pena requesting the results of the investigation, Pena did not respond to Thomas.
Thomas appealed to the Commissioner of Education seeking the removal of Pena for “neglect of duty,” contending that she had failed “to take all necessary steps to ensure the integrity of community district operations.” He also asked the Commissioner to remove other administrators “for allegedly falsifying the results of a Regents examination, retaliating against [him] for reporting such alleged scoring irregularities and the misuse of Title I funds.”
The Commissioner dismissed Thomas’ appeal as untimely.
The Commissioner said that Thomas asked that Pena investigate his allegations in 2008. After Pena informed him that she referred matter to SCI in November 2008, Thomas asked Pena for the results of the investigation in May 2009 and asked her to respond within 10 business days. Thomas argued on May 28, 2009, which he contended was the 10th business day after Pena had received his letter, the 30-day period available to him to commence his appeal began to run.
The Commissioner disagreed with Thomas’ argument. He said that Pena responded to Thomas in November 2008 “with respect to the actions complained of in this appeal.” Accordingly, said the Commissioner, Thomas’ May 2009 letter, ”like a request for reconsideration, does not extend the time within which an appeal must be commenced.”
The Commissioner explained that “An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown,” citing 8 NYCRR §275.16. As the affidavits of service reflect that the petition was served on the several respondent administrators in 2009 and the events complained of occurred more than 30 days prior to those dates, the Commissioner ruled that appeal filed by Thomas was untimely.
The Commissioner’s decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16090.htm
Running for elected office could adversely affect individual’s continuation in his or her public employment
Running for elected office could adversely affect individual’s continuation in his or her public employment
Cusumano v Board of Commissioners, App. Div., 251 A.D.2d 404,
The Cusumano case shows that the decision of a public employee to run for public office may have an unexpected, and unintended, impact on his or her public employment.
In December the Franklin Square and Munson Fire Department held an election for members of its Board of Commissioners. Both Louis R. Cusumano and Theodore Braun submitted valid nominating petitions to run for a vacancy on the board and their names were placed on the ballot.
On the day of the election, Braun, a New York City police officer, asked the board to remove his name from the ballot. He said that he had learned that Section 1129 of the New York City Charter prohibited city police officers that accepted a nomination for elective office from continuing their employment with the city. The board refused to remove Braun’s name from the ballot. To further complicate matters, Braun was elected to the vacancy.
Cusumano sued, seeking an order directing that the election result be set aside, claiming that the board had “improperly failed” to honor Braun’s attempt to decline his nomination. Although a State Supreme Court justice granted Cusumano’s petition, the Appellate Division reversed that ruling.
The Appellate Division pointed out that while Section 176(7) of the Town Law allows a fire district resident to file a nominating petition, there is no provision in the Town Law authorizing the removal of a candidate’s name from the ballot once he or she has filed a lawful petition.
In addition, the court commented that as “Braun was properly nominated ... the fact that he subsequently learned that he could not continue his employment as a New York City police officer if he accepted the nomination did not disqualify him from running for office.”
Accordingly, the Court concluded that the relief Cusumano requested was not warranted because the board’s refusal to remove Braun’s name from the ballot “cannot be considered a failure to perform a duty enjoined upon it by law....”
The decision is silent as to the impact of Braun’s nomination for, and election to, the board on his employment as a New York City police officer.
Cusumano v Board of Commissioners, App. Div., 251 A.D.2d 404,
The Cusumano case shows that the decision of a public employee to run for public office may have an unexpected, and unintended, impact on his or her public employment.
In December the Franklin Square and Munson Fire Department held an election for members of its Board of Commissioners. Both Louis R. Cusumano and Theodore Braun submitted valid nominating petitions to run for a vacancy on the board and their names were placed on the ballot.
On the day of the election, Braun, a New York City police officer, asked the board to remove his name from the ballot. He said that he had learned that Section 1129 of the New York City Charter prohibited city police officers that accepted a nomination for elective office from continuing their employment with the city. The board refused to remove Braun’s name from the ballot. To further complicate matters, Braun was elected to the vacancy.
Cusumano sued, seeking an order directing that the election result be set aside, claiming that the board had “improperly failed” to honor Braun’s attempt to decline his nomination. Although a State Supreme Court justice granted Cusumano’s petition, the Appellate Division reversed that ruling.
The Appellate Division pointed out that while Section 176(7) of the Town Law allows a fire district resident to file a nominating petition, there is no provision in the Town Law authorizing the removal of a candidate’s name from the ballot once he or she has filed a lawful petition.
In addition, the court commented that as “Braun was properly nominated ... the fact that he subsequently learned that he could not continue his employment as a New York City police officer if he accepted the nomination did not disqualify him from running for office.”
Accordingly, the Court concluded that the relief Cusumano requested was not warranted because the board’s refusal to remove Braun’s name from the ballot “cannot be considered a failure to perform a duty enjoined upon it by law....”
The decision is silent as to the impact of Braun’s nomination for, and election to, the board on his employment as a New York City police officer.
Educator's ignoring repeated warnings not to engage in physical contact with students held justified termination
Educator's ignoring repeated warnings not to engage in physical contact with students held justified termination
Forte v Mills, Appellate Division, 250 A.D.2d 882
According to his supervisors at the Manhasset Union Free School District, physical educator teachers Garry Forte had a habit of poking female students in the back and occasionally “snapped their bra straps” during physical education class. After he failed to heed repeated warnings against engaging in physical contact with his students, he was served with disciplinary charges pursuant to Section 3020-a.
A Section 3020-a disciplinary hearing panel found Forte guilty of conduct unbecoming a teacher and insubordination. The panel recommended that Forte be dismissed from his position. The Commissioner of Education sustained the hearing panel’s determination and the penalty imposed.
Forte appealed the Commissioner’s determination. The Appellate Division rejected his appeal, finding that the determination (1) was neither arbitrary nor capricious; (2) was not affected by an error of law; and (3) had a rationale basis.
The decision points out that Forte admitted that he had been orally cautioned against touching students and that he continued to do so “as part of his motivational and instructional technique.” Based on the testimony of witnesses and Forte’s admission, the court said that it found no basis to overturn the Commissioner’s determination.
As to the penalty imposed, dismissal, the Appellate Division said that “dismissal is appropriate where a teacher, having been repeatedly warned against physical contact with students, fails to avoid such contact which, regardless of its purpose, may be interpreted by those students as sexually suggestive or harassing.”
In addition, the court pointed out that with Forte’s “wholly disregarding the progressive discipline imposed in the past,” the penalty imposed was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.
Forte v Mills, Appellate Division, 250 A.D.2d 882
According to his supervisors at the Manhasset Union Free School District, physical educator teachers Garry Forte had a habit of poking female students in the back and occasionally “snapped their bra straps” during physical education class. After he failed to heed repeated warnings against engaging in physical contact with his students, he was served with disciplinary charges pursuant to Section 3020-a.
A Section 3020-a disciplinary hearing panel found Forte guilty of conduct unbecoming a teacher and insubordination. The panel recommended that Forte be dismissed from his position. The Commissioner of Education sustained the hearing panel’s determination and the penalty imposed.
Forte appealed the Commissioner’s determination. The Appellate Division rejected his appeal, finding that the determination (1) was neither arbitrary nor capricious; (2) was not affected by an error of law; and (3) had a rationale basis.
The decision points out that Forte admitted that he had been orally cautioned against touching students and that he continued to do so “as part of his motivational and instructional technique.” Based on the testimony of witnesses and Forte’s admission, the court said that it found no basis to overturn the Commissioner’s determination.
As to the penalty imposed, dismissal, the Appellate Division said that “dismissal is appropriate where a teacher, having been repeatedly warned against physical contact with students, fails to avoid such contact which, regardless of its purpose, may be interpreted by those students as sexually suggestive or harassing.”
In addition, the court pointed out that with Forte’s “wholly disregarding the progressive discipline imposed in the past,” the penalty imposed was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.
Commission’s authority to determine applicant’s qualification for appointment not compromised by court’s order directing the production of evidence
Commission’s authority to determine applicant’s qualification for appointment not compromised by court’s order directing the production of evidence
Matter of McElligott v Nassau County Civ. Serv. Commn., 57 AD3d 671
The Nassau County Civil Service Commission disqualified Maurice McElligott for appointment as a police officer after finding that he did not meet the psychological requirements of the position.
McElligott challenged the Commission’s determination and in the course of the trial Supreme Court directed the Commission to produce "the actual written protocol used, if any, in determining passage or non passage [sic] of applicant's MMPI-2 test" and "evidence demonstrating in what manner [McElligott's] and other candidates' MMPI-2 test results fall outside [the acceptable] range [of scores],” thereby requiring McElligott submit to “a Stage II screening evaluation.”
The basis for the Supreme Court’s action was that if found that the Commission’s psychological expert’s statements directly contradicted the Commission's representation "that only candidates whose scores fall outside the established acceptable range are referred to Stage II of the screening process.”
The Commission appealed, claiming that the court’s order interfered with its power to determine the qualifications for appointment to police officer positions.
The Appellate Division affirmed, commenting that the Supreme Court’s directive neither constituted an attempt to interfere with the Commission’s discretion to determine the qualifications of police officers nor “impermissibly expand the scope of the instant proceeding.”
Rather than demand irrelevant evidence of the MMPI-2 results of other candidates, the Appellate Division ruled that Supreme Court simply directed the Commission to produce evidence, such as a written protocol, that set forth the guidelines for determining whether any given candidate's MMPI-2 score fell outside of a pre-determined "normal" range that would trigger the decision to refer such candidate to Stage II psychological evaluation.
The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09797.htm
Matter of McElligott v Nassau County Civ. Serv. Commn., 57 AD3d 671
The Nassau County Civil Service Commission disqualified Maurice McElligott for appointment as a police officer after finding that he did not meet the psychological requirements of the position.
McElligott challenged the Commission’s determination and in the course of the trial Supreme Court directed the Commission to produce "the actual written protocol used, if any, in determining passage or non passage [sic] of applicant's MMPI-2 test" and "evidence demonstrating in what manner [McElligott's] and other candidates' MMPI-2 test results fall outside [the acceptable] range [of scores],” thereby requiring McElligott submit to “a Stage II screening evaluation.”
The basis for the Supreme Court’s action was that if found that the Commission’s psychological expert’s statements directly contradicted the Commission's representation "that only candidates whose scores fall outside the established acceptable range are referred to Stage II of the screening process.”
The Commission appealed, claiming that the court’s order interfered with its power to determine the qualifications for appointment to police officer positions.
The Appellate Division affirmed, commenting that the Supreme Court’s directive neither constituted an attempt to interfere with the Commission’s discretion to determine the qualifications of police officers nor “impermissibly expand the scope of the instant proceeding.”
Rather than demand irrelevant evidence of the MMPI-2 results of other candidates, the Appellate Division ruled that Supreme Court simply directed the Commission to produce evidence, such as a written protocol, that set forth the guidelines for determining whether any given candidate's MMPI-2 score fell outside of a pre-determined "normal" range that would trigger the decision to refer such candidate to Stage II psychological evaluation.
The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09797.htm
Unilaterally deducting employee leave accruals and creating a noncontractual procedure for recouping holiday pay violated employer's duty to negotiate
Unilaterally deducting employee leave accruals and creating a noncontractual procedure for recouping holiday pay violated employer's duty to negotiate
Sullivan County Patrolman's Benevolent Association, Inc. and County of Sullivan and Sullivan County Sheriff, U-26725 [Source: PERB’s Recent Decisions posting on the Internet]
The Board affirmed the decision of the ALJ finding that the County violated the Taylor Law by unilaterally implementing a system for the recovery of leave accruals and holiday pay which a unit employee allegedly owed to the County and by deducting vacation, sick leave and personal leave from the employee's leave accrual. The Board found that the ALJ properly retained jurisdiction over the charge, which alleged violations of §§209a.1(a), (c), (d) and (e) of the Act.
The ALJ dismissed the (a) and (c) allegations for failure of proof and did not defer the (d) and (e) allegations, even though a decision with respect to those allegations necessitated interpretation of the expired collectively negotiated agreement.
The Board discussed and clarified both its jurisdictional and merits deferral policies regarding (d) and (e) allegations.
PERB affirmed the ALJ, finding that neither jurisdictional nor merits deferral was appropriate in this case because the ALJ had already decided the (a) and (c) allegations, the parties were holding the arbitration of the related grievance in abeyance pending the outcome of the improper practice proceeding and the County was not seeking deferral.
Reaching the merits of the case, the Board held that the County violated §§209a.1(d) and (e) of the Act when it unilaterally deducted leave accruals and set up a noncontractual procedure for recouping holiday pay from an employee who had been on GML §207 leave intermittently over the course of several months.
Sullivan County Patrolman's Benevolent Association, Inc. and County of Sullivan and Sullivan County Sheriff, U-26725 [Source: PERB’s Recent Decisions posting on the Internet]
The Board affirmed the decision of the ALJ finding that the County violated the Taylor Law by unilaterally implementing a system for the recovery of leave accruals and holiday pay which a unit employee allegedly owed to the County and by deducting vacation, sick leave and personal leave from the employee's leave accrual. The Board found that the ALJ properly retained jurisdiction over the charge, which alleged violations of §§209a.1(a), (c), (d) and (e) of the Act.
The ALJ dismissed the (a) and (c) allegations for failure of proof and did not defer the (d) and (e) allegations, even though a decision with respect to those allegations necessitated interpretation of the expired collectively negotiated agreement.
The Board discussed and clarified both its jurisdictional and merits deferral policies regarding (d) and (e) allegations.
PERB affirmed the ALJ, finding that neither jurisdictional nor merits deferral was appropriate in this case because the ALJ had already decided the (a) and (c) allegations, the parties were holding the arbitration of the related grievance in abeyance pending the outcome of the improper practice proceeding and the County was not seeking deferral.
Reaching the merits of the case, the Board held that the County violated §§209a.1(d) and (e) of the Act when it unilaterally deducted leave accruals and set up a noncontractual procedure for recouping holiday pay from an employee who had been on GML §207 leave intermittently over the course of several months.
July 19, 2010
Public law takes precedence over private law
Public law takes precedence over private law*
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/ -- From Law.com, "9th Circuit: No Choice of Law on Independent Contractor Status" by Cheryl Miller of The Recorder
In a significant victory for employment plaintiffs, the 9th U.S. Circuit Court of Appeals on Tuesday held that employers cannot use choice-of-law contracts to avoid California labor regulations.
While workplace contracts may be subject to out-of-state law, actual workplace terms and conditions affecting workers in the Golden State are governed by California statutes ...
"While the contracts will likely be used as evidence to prove or disprove the statutory claims, the claims do not arise out of the contract, involve the interpretation of any contract terms, or otherwise require there to be a contract," [the judge] wrote. The plaintiffs' "claims arose under the Labor Code, a California regulatory scheme, and consequently, California law should apply to define the boundaries of liability under that scheme."
Narayan involves the red-hot issue of employee classification. Plaintiffs lawyers say that multistate companies have increasingly tried to designate workers as independent contractors to avoid California's perceived worker-friendly regulations on overtime and meal-and-rest periods. ...
EMM
* Harvey Randall Comments: Essentially “public law” refers to laws, rules and regulations enacted by a public entity and applicable to all relevant persons and organizations subject to that entity’s jurisdiction while “private law” refers to contracts and agreements between individuals and organizations that are binding only on the parties to the contract or agreement.
However, the Congress of the United States, will, from time to time, enact a “private law” that affects or apples to only an individual, family, or a small group. These private laws are generally adopted to redress some injury resulting from a government programs or in connection an executive agency ruling such as deportation order.
Such private laws are cited, for example, as Pvt.L. 107-006, the abbreviation Pvt.L. indicating that it is a “private law.”
In addition, State legislatures, including New York State’s Legislature, may adopt bills in the nature of “private law” that apply only to a single individual, group of individuals, or certain political subdivisions of the State. For an example of a “private bill” introduced during the 2010 Legislative Session see A1598 Zebrowski – which would authorize Beth Barsamian to receive an ordinary death benefit of her daughter, Lauren Barsamian.
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/ -- From Law.com, "9th Circuit: No Choice of Law on Independent Contractor Status" by Cheryl Miller of The Recorder
In a significant victory for employment plaintiffs, the 9th U.S. Circuit Court of Appeals on Tuesday held that employers cannot use choice-of-law contracts to avoid California labor regulations.
While workplace contracts may be subject to out-of-state law, actual workplace terms and conditions affecting workers in the Golden State are governed by California statutes ...
"While the contracts will likely be used as evidence to prove or disprove the statutory claims, the claims do not arise out of the contract, involve the interpretation of any contract terms, or otherwise require there to be a contract," [the judge] wrote. The plaintiffs' "claims arose under the Labor Code, a California regulatory scheme, and consequently, California law should apply to define the boundaries of liability under that scheme."
Narayan involves the red-hot issue of employee classification. Plaintiffs lawyers say that multistate companies have increasingly tried to designate workers as independent contractors to avoid California's perceived worker-friendly regulations on overtime and meal-and-rest periods. ...
EMM
* Harvey Randall Comments: Essentially “public law” refers to laws, rules and regulations enacted by a public entity and applicable to all relevant persons and organizations subject to that entity’s jurisdiction while “private law” refers to contracts and agreements between individuals and organizations that are binding only on the parties to the contract or agreement.
However, the Congress of the United States, will, from time to time, enact a “private law” that affects or apples to only an individual, family, or a small group. These private laws are generally adopted to redress some injury resulting from a government programs or in connection an executive agency ruling such as deportation order.
Such private laws are cited, for example, as Pvt.L. 107-006, the abbreviation Pvt.L. indicating that it is a “private law.”
In addition, State legislatures, including New York State’s Legislature, may adopt bills in the nature of “private law” that apply only to a single individual, group of individuals, or certain political subdivisions of the State. For an example of a “private bill” introduced during the 2010 Legislative Session see A1598 Zebrowski – which would authorize Beth Barsamian to receive an ordinary death benefit of her daughter, Lauren Barsamian.
Union’s demand for all documents, including without limitation, any memoranda between any of the employer’s agents overbroad
Union’s demand for all documents, including without limitation, any memoranda between any of the employer’s agents overbroad
District Council 37, AFSCME, Local 1070 and State Of New York - Unified Court System, U-27031 [Source: PERB’s Recent Decisions posting on the Internet]
PERB affirmed the ALJ's decision that the Unified Court System [UCS] violated §§209a.1(a) and (d) of the Act when it refused DC 37's request for documents and information for its representation of a bargaining unit member subject to a notice of charges issued pursuant to the disciplinary procedures contained in the UCSDC 37 collectively negotiated agreement.
The Board found that the charge was timely because each denial of a request for information gives rise to a separate violation of the Act. Reiterating the obligation under the Act of an employer to provide an employee organization with reasonable, relevant information necessary for the negotiation and administration of collectively negotiated agreements and the processing of grievances, the Board found that this general right to receive requested information extends to an employee organization's representation of an employee who is the subject of discipline under the negotiated terms of an agreement.
The Board held that "there is no meaningful distinction under the Act between a negotiated disciplinary grievance procedure and one calling for the filing of an answer in response to a notice of charges. Whether disciplinary action can be grieved, answered and/or appealed under a negotiated procedure, an employee organization has a duty to administer that provision under the Act. It follows that in order to fulfill that duty, an employee organization is entitled to receive, upon request, relevant and necessary information in order to effectively represent a member charged."
The Board modified the ALJ's order, however, by finding that DC 37's request for "all documents, including without limitation, any memoranda between any UCS agents" regarding the aggrieved employee was overly broad, unduly burdensome and unnecessary.
District Council 37, AFSCME, Local 1070 and State Of New York - Unified Court System, U-27031 [Source: PERB’s Recent Decisions posting on the Internet]
PERB affirmed the ALJ's decision that the Unified Court System [UCS] violated §§209a.1(a) and (d) of the Act when it refused DC 37's request for documents and information for its representation of a bargaining unit member subject to a notice of charges issued pursuant to the disciplinary procedures contained in the UCSDC 37 collectively negotiated agreement.
The Board found that the charge was timely because each denial of a request for information gives rise to a separate violation of the Act. Reiterating the obligation under the Act of an employer to provide an employee organization with reasonable, relevant information necessary for the negotiation and administration of collectively negotiated agreements and the processing of grievances, the Board found that this general right to receive requested information extends to an employee organization's representation of an employee who is the subject of discipline under the negotiated terms of an agreement.
The Board held that "there is no meaningful distinction under the Act between a negotiated disciplinary grievance procedure and one calling for the filing of an answer in response to a notice of charges. Whether disciplinary action can be grieved, answered and/or appealed under a negotiated procedure, an employee organization has a duty to administer that provision under the Act. It follows that in order to fulfill that duty, an employee organization is entitled to receive, upon request, relevant and necessary information in order to effectively represent a member charged."
The Board modified the ALJ's order, however, by finding that DC 37's request for "all documents, including without limitation, any memoranda between any UCS agents" regarding the aggrieved employee was overly broad, unduly burdensome and unnecessary.
Notice of a final administrative determination
Notice of a final administrative determination
City of New York v Appl, 289 A.D.2d 144
The New York City Board of Collective Bargaining [OCB] issued its "final determination." It later sent a "courtesy copy of the decision to the City's Office of Labor Relations [OLR].
The City attempted to appeal the determination. OCB asked a State Supreme Court justice to dismiss the appeal, contending that its appeal was untimely based on the date it initially delivered its ruling to the City. The City, on the other hand, argued that it had filed a timely appeal based on the date OLR had received its "courtesy copy."
The Appellate Division affirmed a lower court's determination that the City's appeal was, in fact, timely. Why? Because, said the court, OCB had created an ambiguity as to the date on which its determination became final and binding. The court's rationale: if a party creates an ambiguity, the ambiguity should be resolved against the party creating it -- here OCB.
According to the decision, OCB had sent OLR a courtesy copy of the decision after the initial copy of the decision had been delivered to the City in response to OLR's asking it if the initial decision "contained the final version of a dissent submitted by two members of the Board."
Holding that granting OCB's motion to dismiss the City's appeal under the facts in this case would deny the City "its day in court," the Appellate Division affirmed the Supreme Court's ruling that the statutory period for filing the appeal did not begin to run until the second decision had been delivered to OLR.
The general rule in such cases is that the statute of limitations to appeal an administrative determination begins to run when notice of the final administrative action or decision is received by the party or, if the party is represented by an attorney, the party's attorney.
Delivery of a final administrative decision to an employee's union does not count with respect to the commencement of the running of the statute of limitations. In Weeks v State of New York, 198 AD2d 615, the court held that the statute of limitations begins to run when the decision is served on the employee, not from the date on which the union received its copy.
The basic rule:
1. If an employee is represented by an attorney, the administrative body maysend a copy of the determination to the employee but it must serve the attorneyto begin the running of the statute of limitations.
2. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.
In contrast, a request for reconsideration does not serve to extend the period during which a party can file a timely appeal challenging the administrative action or decision.
This point is illustrated in the Cardo case [Cardo v Sielaff, 588 NYS2d 282]. In Cardo one of the issues concerned the question of the timely filing of an appeal. The court said that although Cardo asked his employer to "reconsider" its administrative decision, such a request "did not extend the period \within which the [Article 78] proceeding must be commenced."
In contrast to the legal effect of an individual merely submitting a "request for reconsideration," suppose the administrative body actually agrees to reconsider the matter and issue a new determination. In such a situation the statute of limitations will begin running from the date of the new "final determination." This is the case even if the new "final determination" confirms the original administrative decision.
Presumably the court did not view OLR's action as a "request for reconsideration." The court, however, may have considered the contents of the "courtesy copy" sent to OLR in response to its inquiry to be OCB's final determination.
In any event, at least one court has ruled that the final administrative action must be reduced to writing in order to start the statute of limitations running. In McCoy v San Francisco, CA9, 92-16319, a federal circuit court of appeals ruled that a public employee's civil rights suit against his employer accrued when the appointing authority issued a written statement suspending him from work rather than from the date of a hearing held earlier at which time McCoy was orally advised that he was suspended from his position.
In contrast, in another case, Mavica v New York City Transit Authority, 289 A.D.2d 86, the court rejected an argument based on an alleged ambiguity created by a collective bargaining agreement and the employer's regulations.
Here the court rejected John Mavica's claim that a provision in his union's collective bargaining agreement with Transit Authority explicitly implementing a disciplinary grievance arbitration procedure in lieu of any other disciplinary procedure that may have previously applied to an employee covered by this Agreement including but not limited to the procedure specified in Sections 75 and 76 of the Civil Service Law was rendered ambiguous by other provisions of the same collective bargaining agreement and by the Authority's regulations.
Mavica filed an Article 78 petition seeking to have the Authority's action terminating his employment declared null and void.Here, said the court, the proper way to challenge the Authority's dismissing Mavica from his position following a disciplinary arbitration upholding the Authority's determination was for Mavica to file a motion to vacate the arbitration award pursuant to Article 75 of the Civil Practice Law and Rules, suggesting that the court did not find any ambiguity created by the terms set out in the collective bargaining agreement or in the Authority's rules.
City of New York v Appl, 289 A.D.2d 144
The New York City Board of Collective Bargaining [OCB] issued its "final determination." It later sent a "courtesy copy of the decision to the City's Office of Labor Relations [OLR].
The City attempted to appeal the determination. OCB asked a State Supreme Court justice to dismiss the appeal, contending that its appeal was untimely based on the date it initially delivered its ruling to the City. The City, on the other hand, argued that it had filed a timely appeal based on the date OLR had received its "courtesy copy."
The Appellate Division affirmed a lower court's determination that the City's appeal was, in fact, timely. Why? Because, said the court, OCB had created an ambiguity as to the date on which its determination became final and binding. The court's rationale: if a party creates an ambiguity, the ambiguity should be resolved against the party creating it -- here OCB.
According to the decision, OCB had sent OLR a courtesy copy of the decision after the initial copy of the decision had been delivered to the City in response to OLR's asking it if the initial decision "contained the final version of a dissent submitted by two members of the Board."
Holding that granting OCB's motion to dismiss the City's appeal under the facts in this case would deny the City "its day in court," the Appellate Division affirmed the Supreme Court's ruling that the statutory period for filing the appeal did not begin to run until the second decision had been delivered to OLR.
The general rule in such cases is that the statute of limitations to appeal an administrative determination begins to run when notice of the final administrative action or decision is received by the party or, if the party is represented by an attorney, the party's attorney.
Delivery of a final administrative decision to an employee's union does not count with respect to the commencement of the running of the statute of limitations. In Weeks v State of New York, 198 AD2d 615, the court held that the statute of limitations begins to run when the decision is served on the employee, not from the date on which the union received its copy.
The basic rule:
1. If an employee is represented by an attorney, the administrative body maysend a copy of the determination to the employee but it must serve the attorneyto begin the running of the statute of limitations.
2. If the employee is represented by a person who is not an attorney, the administrative body may send a copy to the representative but it must serve the employee to start the statute of limitations running.
In contrast, a request for reconsideration does not serve to extend the period during which a party can file a timely appeal challenging the administrative action or decision.
This point is illustrated in the Cardo case [Cardo v Sielaff, 588 NYS2d 282]. In Cardo one of the issues concerned the question of the timely filing of an appeal. The court said that although Cardo asked his employer to "reconsider" its administrative decision, such a request "did not extend the period \within which the [Article 78] proceeding must be commenced."
In contrast to the legal effect of an individual merely submitting a "request for reconsideration," suppose the administrative body actually agrees to reconsider the matter and issue a new determination. In such a situation the statute of limitations will begin running from the date of the new "final determination." This is the case even if the new "final determination" confirms the original administrative decision.
Presumably the court did not view OLR's action as a "request for reconsideration." The court, however, may have considered the contents of the "courtesy copy" sent to OLR in response to its inquiry to be OCB's final determination.
In any event, at least one court has ruled that the final administrative action must be reduced to writing in order to start the statute of limitations running. In McCoy v San Francisco, CA9, 92-16319, a federal circuit court of appeals ruled that a public employee's civil rights suit against his employer accrued when the appointing authority issued a written statement suspending him from work rather than from the date of a hearing held earlier at which time McCoy was orally advised that he was suspended from his position.
In contrast, in another case, Mavica v New York City Transit Authority, 289 A.D.2d 86, the court rejected an argument based on an alleged ambiguity created by a collective bargaining agreement and the employer's regulations.
Here the court rejected John Mavica's claim that a provision in his union's collective bargaining agreement with Transit Authority explicitly implementing a disciplinary grievance arbitration procedure in lieu of any other disciplinary procedure that may have previously applied to an employee covered by this Agreement including but not limited to the procedure specified in Sections 75 and 76 of the Civil Service Law was rendered ambiguous by other provisions of the same collective bargaining agreement and by the Authority's regulations.
Mavica filed an Article 78 petition seeking to have the Authority's action terminating his employment declared null and void.Here, said the court, the proper way to challenge the Authority's dismissing Mavica from his position following a disciplinary arbitration upholding the Authority's determination was for Mavica to file a motion to vacate the arbitration award pursuant to Article 75 of the Civil Practice Law and Rules, suggesting that the court did not find any ambiguity created by the terms set out in the collective bargaining agreement or in the Authority's rules.
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
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
July 16, 2010
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
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
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
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.
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.
Overtime accruals excluded in calculating narcotics bureaus investigator’s retirement allowance
Overtime accruals excluded in calculating narcotics bureaus investigator’s retirement allowance
Source: Findlaw’s Weekly Government Benefits Newsletter – A Thomson Company, Copyright ©2010 by Findlaw, redistributed with permission. For subscription information go to: http://newsletters.findlaw.com/nl/
Stevenson v. Bd. of Ret. of the Orange County Employees' Ret. Sys. , California Court of Appeal, 07/07/2010
In plaintiff's petition for administrative mandate challenging the decision of the Board of Retirement of the Orange County Employees Retirement System (Board), excluding his overtime in calculating his pension allowance, trial court's denial of the petition is affirmed as the administrative record contains substantial evidence showing plaintiff's grade or class within the meaning of section 31461 was that of investigator, and as such, the overtime he worked that was unique to investigators in the narcotics bureaus was properly excluded from his "compensation earnable".
[Click on Case Cite to read the full decision (Free registration required)]
Source: Findlaw’s Weekly Government Benefits Newsletter – A Thomson Company, Copyright ©2010 by Findlaw, redistributed with permission. For subscription information go to: http://newsletters.findlaw.com/nl/
Stevenson v. Bd. of Ret. of the Orange County Employees' Ret. Sys. , California Court of Appeal, 07/07/2010
In plaintiff's petition for administrative mandate challenging the decision of the Board of Retirement of the Orange County Employees Retirement System (Board), excluding his overtime in calculating his pension allowance, trial court's denial of the petition is affirmed as the administrative record contains substantial evidence showing plaintiff's grade or class within the meaning of section 31461 was that of investigator, and as such, the overtime he worked that was unique to investigators in the narcotics bureaus was properly excluded from his "compensation earnable".
[Click on Case Cite to read the full decision (Free registration required)]
July 15, 2010
An administrative determination will be sustained by the court unless it is shown to be arbitrary or capricious and without a rational basis
An administrative determination will be sustained by the court unless it is shown to be arbitrary or capricious and without a rational basis
Pereira v Nassau County Civ. Serv. Commn., 2010 NY Slip Op 51209(U), Decided on June 14, 2010, Supreme Court, Nassau County, Judge Thomas Feinman, [Not selected for publications in the Official Reports]
The Nassau County Civil Service Commission disqualified Victor Pereira for appointment as a Police Officer after he had passed the written test for the position. Claiming that the Commission’s decision “was made in violation of lawful procedure, was arbitrary and capricious, as abuse of discretion, and effected by law, and not supported by substantial evidence, Pereira as the court to vacated the Commission’s action.
The basis for the Commission’s action was that Pereira failed to meet the physical agility examination for the position.
Pereira was in an age group of applicants that were required to complete 35 sit-ups in one minute in order to avoid disqualification and move on to the final test, a1.5 mile run.
However, Pereira examiner determined that he only completed 28 sit-ups in the necessary and correct form, and therefore, he was disqualified from further evaluation for the appointment as a police officer. Pereira, on the other hand that he had completed 44 sit-ups and that the monitor failed to give him the appropriate credit for his performance.
Judge Feinman said that the Commission’s determination is subject to review under the "arbitrary and capricious" standard of CPLR §7803(3). In applying this standard, said Judge Feinman, an administrative determination will not be disturbed unless the record shows that the agency's action was "arbitrary, unreasonable, irrational or indicative of bad faith."
"Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" and the court's inquiry is limited strictly to a determination of whether a rational basis exists for the agency's actions.
After considering the evidence presented by the Commission concerning the administration and rating of Pereira's sit-ups during the physical agility test, the court ruled that the Commission’s determination was neither arbitrary nor capricious and had a rational basis for its determination and dismissed Pereira’s petition.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51209.htm
Pereira v Nassau County Civ. Serv. Commn., 2010 NY Slip Op 51209(U), Decided on June 14, 2010, Supreme Court, Nassau County, Judge Thomas Feinman, [Not selected for publications in the Official Reports]
The Nassau County Civil Service Commission disqualified Victor Pereira for appointment as a Police Officer after he had passed the written test for the position. Claiming that the Commission’s decision “was made in violation of lawful procedure, was arbitrary and capricious, as abuse of discretion, and effected by law, and not supported by substantial evidence, Pereira as the court to vacated the Commission’s action.
The basis for the Commission’s action was that Pereira failed to meet the physical agility examination for the position.
Pereira was in an age group of applicants that were required to complete 35 sit-ups in one minute in order to avoid disqualification and move on to the final test, a1.5 mile run.
However, Pereira examiner determined that he only completed 28 sit-ups in the necessary and correct form, and therefore, he was disqualified from further evaluation for the appointment as a police officer. Pereira, on the other hand that he had completed 44 sit-ups and that the monitor failed to give him the appropriate credit for his performance.
Judge Feinman said that the Commission’s determination is subject to review under the "arbitrary and capricious" standard of CPLR §7803(3). In applying this standard, said Judge Feinman, an administrative determination will not be disturbed unless the record shows that the agency's action was "arbitrary, unreasonable, irrational or indicative of bad faith."
"Arbitrary action is without sound basis in reason and is generally taken without regard to the facts" and the court's inquiry is limited strictly to a determination of whether a rational basis exists for the agency's actions.
After considering the evidence presented by the Commission concerning the administration and rating of Pereira's sit-ups during the physical agility test, the court ruled that the Commission’s determination was neither arbitrary nor capricious and had a rational basis for its determination and dismissed Pereira’s petition.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51209.htm
Changes in New York State’s Personnel Management Manual: Part 2000 Probation
Changes in New York State’s Personnel Management Manual: Part 2000 Probation
Source: The New York Department of Civil Service Transmittal Memorandum No. 67
The New York Department of Civil Service has distributed Transmittal Memorandum No. 67 updating its State Personnel Management Manual materials addressing “probation.”
The revised or new material clarify that:
A probationer who is transferred may not have the probationary period waived.
Upon cover-in to the appropriately classified service position in accordance with Civil Service Law §45(2) and as determined by the Civil Service Commission, an incumbent is required to serve a probationary period consistent with §4.5 (4NYCRR) for the Classified Service.
The appointing authority’s and the Department of Civil Service’s responsibilities concerning the administration of the probationary process.
Other changes include:
An additional example of probation being appropriately extended rather than terminated;
Explaining that under certain circumstances, service in same-level and lower-level positions now to count toward completion of probation in the position from which the employee is on leave;
Illustrate a situation in which a trainee may have a probationary period extended.
If you wish to print Transmittal Memorandum 67, it is provided in a pdf format at:
http://www.cs.state.ny.us/ssd/pdf/TM_67.pdf
Source: The New York Department of Civil Service Transmittal Memorandum No. 67
The New York Department of Civil Service has distributed Transmittal Memorandum No. 67 updating its State Personnel Management Manual materials addressing “probation.”
The revised or new material clarify that:
A probationer who is transferred may not have the probationary period waived.
Upon cover-in to the appropriately classified service position in accordance with Civil Service Law §45(2) and as determined by the Civil Service Commission, an incumbent is required to serve a probationary period consistent with §4.5 (4NYCRR) for the Classified Service.
The appointing authority’s and the Department of Civil Service’s responsibilities concerning the administration of the probationary process.
Other changes include:
An additional example of probation being appropriately extended rather than terminated;
Explaining that under certain circumstances, service in same-level and lower-level positions now to count toward completion of probation in the position from which the employee is on leave;
Illustrate a situation in which a trainee may have a probationary period extended.
If you wish to print Transmittal Memorandum 67, it is provided in a pdf format at:
http://www.cs.state.ny.us/ssd/pdf/TM_67.pdf
Employee disciplined for making false statements in the course of an administrative investigation
Employee disciplined for making false statements in the course of an administrative investigation
Abbate v Safir, App. Div., First Dept., 279 A.D.2d 260
Not being truthful in responding to questions posed in the course of an official investigation may result in disciplinary action.
New York City police officer Anthony Abbate was found guilty of charges that he "lied at his official interview" when he denied that he had "uttered profanities to another officer," and, in a separate incident, "was discourteous and disrespectful to another officer in uttering racial epithets in an argument." The penalty imposed: dismissal from the force.
Abbate's appeal from the determination and the penalty imposed was dismissed by the Appellate Division. The court said that there was substantial evidence to support a finding that Abbate was guilty of the charges.
As to Abbate's challenge to his dismissal, the Appellate Division decided that in view of Abbate's "poor disciplinary record" the penalty of dismissal satisfied the Pell standard [Pell v Board of Education, 34 NY2d 222]. In the words of the court, "the penalty does not shock our sense of fairness."
Apparently the Appellate Division gave substantial weight to the fact that Abbate had been found guilty of lying in an "official investigation" as the Calhoun case demonstrates.
New York City police officer Gary Calhoun appealed his being found guilty of using racial epithets in the course of making an arrest [Calhoun v Safir, Appellate Division, First Department, 279 A.D.2d 295].
Calhoun had been found guilty of disciplinary charges alleging that he used "excessive force and racial epithets" in arresting a suspected car thief. The penalty imposed: suspension without pay for thirty days as a result.
The Appellate Division, again referring to the Pell doctrine, sustained the Commissioner's determination, commenting that "[T]he 30-day suspension does not shock our sense of fairness and is a minimal penalty in light of the conduct."
Abbate v Safir, App. Div., First Dept., 279 A.D.2d 260
Not being truthful in responding to questions posed in the course of an official investigation may result in disciplinary action.
New York City police officer Anthony Abbate was found guilty of charges that he "lied at his official interview" when he denied that he had "uttered profanities to another officer," and, in a separate incident, "was discourteous and disrespectful to another officer in uttering racial epithets in an argument." The penalty imposed: dismissal from the force.
Abbate's appeal from the determination and the penalty imposed was dismissed by the Appellate Division. The court said that there was substantial evidence to support a finding that Abbate was guilty of the charges.
As to Abbate's challenge to his dismissal, the Appellate Division decided that in view of Abbate's "poor disciplinary record" the penalty of dismissal satisfied the Pell standard [Pell v Board of Education, 34 NY2d 222]. In the words of the court, "the penalty does not shock our sense of fairness."
Apparently the Appellate Division gave substantial weight to the fact that Abbate had been found guilty of lying in an "official investigation" as the Calhoun case demonstrates.
New York City police officer Gary Calhoun appealed his being found guilty of using racial epithets in the course of making an arrest [Calhoun v Safir, Appellate Division, First Department, 279 A.D.2d 295].
Calhoun had been found guilty of disciplinary charges alleging that he used "excessive force and racial epithets" in arresting a suspected car thief. The penalty imposed: suspension without pay for thirty days as a result.
The Appellate Division, again referring to the Pell doctrine, sustained the Commissioner's determination, commenting that "[T]he 30-day suspension does not shock our sense of fairness and is a minimal penalty in light of the conduct."
A multi-year employment contract between an educator and a school board necessarily binds successor school boards
A multi-year employment contract between an educator and a school board necessarily binds successor school boards
Decisions of the Commissioner of Education, 13958, 13960
School superintendents and their deputies are usually employed pursuant to a written contract that sets out the terms and conditions of their employment. Each time a school board enters into a multi-year contract “it necessarily binds successor boards,” the Commissioner of Education ruled in two cases involving the Mount Vernon City School District in Westchester County.
On June 12, 1997 Mount Vernon City School District’s Board of Education approved resolutions extending its written employment contract with both its superintendent, William C. Prattella and its deputy superintendent, Edward J. Reilly, through June 30, 2000. On July 1, 1997, a newly elected Board adopted a resolution rescinding the former board’s resolutions of June 12.
Both Prattella and Reilly challenged the newly elected board’s action and asked the Commissioner of Education to intervene.
The district asserted that the previous board’s actions were improper and it had the right to rescind the contract extensions because it read Section 2507 of the Education Law as barring a “small city school district” from entering into a written contract with a superintendent or a deputy superintendent.
The Commissioner disagreed with the district’s interpretation of Section 2507. He cited language in Section 2507(1), which applies to superintendents and associate superintendents of small city school districts and Section 2509(3), which covers assistant school superintendents. These provisions authorize the board of a small city school district to contract with such employees for a period of one to five years, he said.
The newly elected board also argued that the action by the previous board was contrary to public policy since “New York courts have held that municipal and governmental boards are not able to bind their successors to long-term contractual provisions.
The Commissioner agreed that “there is venerable authority for the proposition that municipal and government boards should not be able to bind their successors to long-term contractual provisions.” However, he noted, courts have recognized an exception to this general proposition “where a specific statutory provision authorizes a long-term contractual arrangement,” citing Murphy v Erie County, 28 NY2d 80.
Holding that Sections 2507(1) and 2507(3) constituted such statutory provisions, the Commissioner ruled that each time a school board enters into a multi-year “it necessarily binds successor boards.” The Commissioner sustained both appeals.
The Commissioner concluded his opinions in both appeals by commenting that although he was “constrained to recognize the legality of the eleventh hour extension” of the contracts voted by the former Board, he did not endorse the wisdom of its action, “which does not inspire voter confidence in school officials.” This is an example of dicta, a statement of opinion made by a judicial or quasi-judicial official that is not required to resolve the controversy or make a determination.
Decisions of the Commissioner of Education, 13958, 13960
School superintendents and their deputies are usually employed pursuant to a written contract that sets out the terms and conditions of their employment. Each time a school board enters into a multi-year contract “it necessarily binds successor boards,” the Commissioner of Education ruled in two cases involving the Mount Vernon City School District in Westchester County.
On June 12, 1997 Mount Vernon City School District’s Board of Education approved resolutions extending its written employment contract with both its superintendent, William C. Prattella and its deputy superintendent, Edward J. Reilly, through June 30, 2000. On July 1, 1997, a newly elected Board adopted a resolution rescinding the former board’s resolutions of June 12.
Both Prattella and Reilly challenged the newly elected board’s action and asked the Commissioner of Education to intervene.
The district asserted that the previous board’s actions were improper and it had the right to rescind the contract extensions because it read Section 2507 of the Education Law as barring a “small city school district” from entering into a written contract with a superintendent or a deputy superintendent.
The Commissioner disagreed with the district’s interpretation of Section 2507. He cited language in Section 2507(1), which applies to superintendents and associate superintendents of small city school districts and Section 2509(3), which covers assistant school superintendents. These provisions authorize the board of a small city school district to contract with such employees for a period of one to five years, he said.
The newly elected board also argued that the action by the previous board was contrary to public policy since “New York courts have held that municipal and governmental boards are not able to bind their successors to long-term contractual provisions.
The Commissioner agreed that “there is venerable authority for the proposition that municipal and government boards should not be able to bind their successors to long-term contractual provisions.” However, he noted, courts have recognized an exception to this general proposition “where a specific statutory provision authorizes a long-term contractual arrangement,” citing Murphy v Erie County, 28 NY2d 80.
Holding that Sections 2507(1) and 2507(3) constituted such statutory provisions, the Commissioner ruled that each time a school board enters into a multi-year “it necessarily binds successor boards.” The Commissioner sustained both appeals.
The Commissioner concluded his opinions in both appeals by commenting that although he was “constrained to recognize the legality of the eleventh hour extension” of the contracts voted by the former Board, he did not endorse the wisdom of its action, “which does not inspire voter confidence in school officials.” This is an example of dicta, a statement of opinion made by a judicial or quasi-judicial official that is not required to resolve the controversy or make a determination.
Incorporating the terms of a collective bargaining agreement in an employment contract by reference sets the contract’s controlling provisions
Incorporating the terms of a collective bargaining agreement in an employment contract by reference sets the contract’s controlling provisions
Drucker v Hofstra Univ., App. Div., Second Dept, 279 A.D.2d 472
The Drucker case demonstrates the fact that if the terms of a collective bargaining agreement have been incorporated by reference into an employment contract between the individual and his or her employer, the courts will hold the parties to the controlling provisions set out in the collective bargaining agreement.
Hoftra University said that it was terminating Susan J. Drucker from her position as Chair of the Department of Speech Communication and Rhetorical Studies "for good cause" .
The reason given by Hofstra for Drucker's dismissal: she had failed to maintain "an effective communication climate" with her faculty in violation of Hofstra University's Faculty Policy.
Drucker appealed, contending that her termination was unlawful because she had been employed "unconditionally."
The Appellate Division affirmed a lower court's dismissal of her petition, commenting that the University's action was not arbitrary, capricious, or irrational.
Instead of being hired "unconditionally," the court said that the collective bargaining agreement was "incorporated by reference into [Drucker's] contract of employment...."
The collective bargaining agreement provided that Drucker could be removed for "good cause" upon the filing of a petition signed by two-thirds of the membership of her department, followed by a meeting between the dean and the department membership.
Finding that the record demonstrated that the University had followed the procedures set out in the collective bargaining agreement and that Drucker "had ample opportunity to present her side of the case," the Appellate Division concluded that there was no basis for nullifying the University's action.
Drucker v Hofstra Univ., App. Div., Second Dept, 279 A.D.2d 472
The Drucker case demonstrates the fact that if the terms of a collective bargaining agreement have been incorporated by reference into an employment contract between the individual and his or her employer, the courts will hold the parties to the controlling provisions set out in the collective bargaining agreement.
Hoftra University said that it was terminating Susan J. Drucker from her position as Chair of the Department of Speech Communication and Rhetorical Studies "for good cause" .
The reason given by Hofstra for Drucker's dismissal: she had failed to maintain "an effective communication climate" with her faculty in violation of Hofstra University's Faculty Policy.
Drucker appealed, contending that her termination was unlawful because she had been employed "unconditionally."
The Appellate Division affirmed a lower court's dismissal of her petition, commenting that the University's action was not arbitrary, capricious, or irrational.
Instead of being hired "unconditionally," the court said that the collective bargaining agreement was "incorporated by reference into [Drucker's] contract of employment...."
The collective bargaining agreement provided that Drucker could be removed for "good cause" upon the filing of a petition signed by two-thirds of the membership of her department, followed by a meeting between the dean and the department membership.
Finding that the record demonstrated that the University had followed the procedures set out in the collective bargaining agreement and that Drucker "had ample opportunity to present her side of the case," the Appellate Division concluded that there was no basis for nullifying the University's action.
July 14, 2010
Claiming entitlement to payment for unused vacation and sick leave credit upon resignation
Claiming entitlement to payment for unused vacation and sick leave credit upon resignation
Sherwood v Town of Lancaster, 2010 NY Slip Op 06057, Decided on July 9, 2010, Appellate Division, Fourth Department
Richard J. Sherwood “abruptly resigned” from his position of Town Attorney, Town of Lancaster, “in order to avoid his imminent termination.”*
Sherwood subsequently filed a petition pursuant to CPLR Article 78 seeking credit for unused vacation and sick leave accrued as of the date of his retirement from his position as Town Attorney. Supreme Court ruled that Sherwood was ineligible to receive a credit for unused vacation and sick leave that he had accrued and he appealed.
The Appellate Division noted that the controlling provision set out in a collective bargaining agreement** addressing the liquidation of accrued but unused vacation days in Sherwood’s situation provided that "[i]f an employee is separated from Town service for any reason except termination for cause or resignation on less than ten working days' notice, he/she shall be paid in full for any unused vacation to which he/she is entitled."
It was undisputed that Sherwood gave less than 10 working days' notice of his resignation. The Appellate Division said that Sherwood would have been entitled to a credit for unused vacation days that he accrued had he not resigned and simply awaited the Town Board's decision not to reappoint him. “As he instead chose to resign effective immediately, he is not entitled to that credit.”
However, said the court, Sherwood also contended that he was entitled to “a credit for accrued but unused sick leave pursuant to Article 5 of the [collective bargaining agreement].” Section 5.4.1 provides of the CBA provides that "[p]rior to the retirement, the employee may apply to the Town Board for a lump sum payment of sixty (60%) percent of the cash value of his or her accumulated sick leave as of the date of retirement."
The Appellate Division said that Supreme Court erred in determining that "[s]ection 5.4 of the [CBA] renders eligible only those employees who have actually applied for retirement through the NYS Employee's Retirement System to receive a lump sum payment for accrued sick time." Under the facts regarding Sherwood’s leaving town service, the Appellate Division concluded that the CBA provisions concerning retirement unambiguously apply him” and thus he was a credit for unused sick leave that he accrued.
The court modified the lower court’s decision by reinstating Sherwood's claim for unused sick leave credit under the CBA as well as Retirement and Social Security Law §41(j)*** for the period running from the date of his appointment as Town Attorney effective January 1, 1996, through the date of his retirement, and remitted the matter to Supreme Court to determine “the number of accumulated sick days or hours, if any,” for which Sherwood is entitled to credit.
* Sherwood’s resignation on January 7, 2008 was precipitated by his learning that the Town Board, meeting later that same day, would not reappoint him to the position of Town Attorney.
** The Town Board had earlier adopted a resolution making the provisions of the collective bargaining agreement between the Town and Civil Service Employees Association for the Town's employees in the "White Collar Unit" applicable to unrepresented employees such as Sherwood.
*** Retirement and Social Security Law §41(j) provides for an “Allowance for unused sick leave for members in the employ of the state.” §2.8 of the Retirement and Social Security Law defines the term “employer” as “The state, a participating employer, and any other unit of government or organization obligated or agreeing, under this article, to make contributions to the retirement system on behalf of its employees.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06057.htm
Sherwood v Town of Lancaster, 2010 NY Slip Op 06057, Decided on July 9, 2010, Appellate Division, Fourth Department
Richard J. Sherwood “abruptly resigned” from his position of Town Attorney, Town of Lancaster, “in order to avoid his imminent termination.”*
Sherwood subsequently filed a petition pursuant to CPLR Article 78 seeking credit for unused vacation and sick leave accrued as of the date of his retirement from his position as Town Attorney. Supreme Court ruled that Sherwood was ineligible to receive a credit for unused vacation and sick leave that he had accrued and he appealed.
The Appellate Division noted that the controlling provision set out in a collective bargaining agreement** addressing the liquidation of accrued but unused vacation days in Sherwood’s situation provided that "[i]f an employee is separated from Town service for any reason except termination for cause or resignation on less than ten working days' notice, he/she shall be paid in full for any unused vacation to which he/she is entitled."
It was undisputed that Sherwood gave less than 10 working days' notice of his resignation. The Appellate Division said that Sherwood would have been entitled to a credit for unused vacation days that he accrued had he not resigned and simply awaited the Town Board's decision not to reappoint him. “As he instead chose to resign effective immediately, he is not entitled to that credit.”
However, said the court, Sherwood also contended that he was entitled to “a credit for accrued but unused sick leave pursuant to Article 5 of the [collective bargaining agreement].” Section 5.4.1 provides of the CBA provides that "[p]rior to the retirement, the employee may apply to the Town Board for a lump sum payment of sixty (60%) percent of the cash value of his or her accumulated sick leave as of the date of retirement."
The Appellate Division said that Supreme Court erred in determining that "[s]ection 5.4 of the [CBA] renders eligible only those employees who have actually applied for retirement through the NYS Employee's Retirement System to receive a lump sum payment for accrued sick time." Under the facts regarding Sherwood’s leaving town service, the Appellate Division concluded that the CBA provisions concerning retirement unambiguously apply him” and thus he was a credit for unused sick leave that he accrued.
The court modified the lower court’s decision by reinstating Sherwood's claim for unused sick leave credit under the CBA as well as Retirement and Social Security Law §41(j)*** for the period running from the date of his appointment as Town Attorney effective January 1, 1996, through the date of his retirement, and remitted the matter to Supreme Court to determine “the number of accumulated sick days or hours, if any,” for which Sherwood is entitled to credit.
* Sherwood’s resignation on January 7, 2008 was precipitated by his learning that the Town Board, meeting later that same day, would not reappoint him to the position of Town Attorney.
** The Town Board had earlier adopted a resolution making the provisions of the collective bargaining agreement between the Town and Civil Service Employees Association for the Town's employees in the "White Collar Unit" applicable to unrepresented employees such as Sherwood.
*** Retirement and Social Security Law §41(j) provides for an “Allowance for unused sick leave for members in the employ of the state.” §2.8 of the Retirement and Social Security Law defines the term “employer” as “The state, a participating employer, and any other unit of government or organization obligated or agreeing, under this article, to make contributions to the retirement system on behalf of its employees.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06057.htm
A name clearing hearing available if adverse allegations are shared with another agency or administrator without the assurance of confidentiality
A name clearing hearing available if adverse allegations are shared with another agency or administrator without the assurance of confidentiality
Vandine v Greece Cent. School Dist., 2010 NY Slip Op 06059, Decided on July 9, 2010, Appellate Division, Fourth Department
Douglas W. Vandine commenced filed a petition pursuant to CPLR Article 78 seeking a court order directing the Greece CSD to hold a name-clearing hearing with respect to allegations associated with his termination from his probationary position with the district.
Supreme Court dismissed Vandine’s petition but the Appellate Division ruled that this was incorrect.
The Appellate Division noted that in the event "a government employee is dismissed for stigmatizing reasons that seriously imperil [his or her] opportunity to acquire future employment, the individual is entitled to an opportunity to refute the charge” if he or she demonstrates that there "has been a public disclosure by the employer of stigmatizing reasons for the discharge."
Typically, said the court, “the submission of a complaint to the New York State Department of Education (SED) based upon the allegations underlying [Vandine's] termination does not constitute such a public disclosure.”
Here, however, the court decided that although a confidential communication with an authorized governmental administrator or agency does not constitute public disclosure, here SED may determine that, based on allegations in the complaint, there exists a substantial question concerning Vandine's moral character that ultimately could result in the revocation of his teaching certificate. Accordingly the Appellate Division concluded that as 8 NYCRR 83.1 et seq,. the applicable regulations, do not specifically provide for confidentiality, there is a potential for public disclosure sufficient to establish Vandine's entitlement to a name-clearing hearing.
Reversing the lower court’s decision, the Appellate Division explained that a name clearing hearing was justified because under the controlling regulations Vandine would be given a hearing on the complaint submitted to SED by the school district only if a determination is made that the allegations raise a substantial question concerning his moral character.
Accordingly, the Appellate Division ruled that as Vandine is not guaranteed a hearing on the complaint, he may be foreclosed from any opportunity to refute the allegations absent a name-clearing hearing held by the school district.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06059.htm
Vandine v Greece Cent. School Dist., 2010 NY Slip Op 06059, Decided on July 9, 2010, Appellate Division, Fourth Department
Douglas W. Vandine commenced filed a petition pursuant to CPLR Article 78 seeking a court order directing the Greece CSD to hold a name-clearing hearing with respect to allegations associated with his termination from his probationary position with the district.
Supreme Court dismissed Vandine’s petition but the Appellate Division ruled that this was incorrect.
The Appellate Division noted that in the event "a government employee is dismissed for stigmatizing reasons that seriously imperil [his or her] opportunity to acquire future employment, the individual is entitled to an opportunity to refute the charge” if he or she demonstrates that there "has been a public disclosure by the employer of stigmatizing reasons for the discharge."
Typically, said the court, “the submission of a complaint to the New York State Department of Education (SED) based upon the allegations underlying [Vandine's] termination does not constitute such a public disclosure.”
Here, however, the court decided that although a confidential communication with an authorized governmental administrator or agency does not constitute public disclosure, here SED may determine that, based on allegations in the complaint, there exists a substantial question concerning Vandine's moral character that ultimately could result in the revocation of his teaching certificate. Accordingly the Appellate Division concluded that as 8 NYCRR 83.1 et seq,. the applicable regulations, do not specifically provide for confidentiality, there is a potential for public disclosure sufficient to establish Vandine's entitlement to a name-clearing hearing.
Reversing the lower court’s decision, the Appellate Division explained that a name clearing hearing was justified because under the controlling regulations Vandine would be given a hearing on the complaint submitted to SED by the school district only if a determination is made that the allegations raise a substantial question concerning his moral character.
Accordingly, the Appellate Division ruled that as Vandine is not guaranteed a hearing on the complaint, he may be foreclosed from any opportunity to refute the allegations absent a name-clearing hearing held by the school district.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06059.htm
The three-year statute of limitations for disqualifying an employee pursuant to Civil Service Law §50(4) does not apply in cases involving fraud
The three-year statute of limitations for disqualifying an employee pursuant to Civil Service Law §50(4) does not apply in cases involving fraud
Urciuoli v Department of Citywide Admin. Servs., 2010 NY Slip Op 05876, Decided on July 1, 2010, Appellate Division, First Department
The New York City Department of Citywide Administrative Services advised Gerard Urciuoli that it was retroactively rescinding its approval his application for employment as a New York City police officer and decertifying that he was qualified for such an appointment, thereby effectively terminating his employment. Urciuoli was also advised that he could appeal the Department of Citywide Administration’s determination to the New York City Civil Service Commission.
Instead of appealing to the Commission, Urciuoli opted to file his appeal with Supreme Court. Supreme Court dismissed his petition and the Appellate Division affirmed the lower court’s ruling, explaining that Urciuoli had failed to exhaust his administrative remedies, thus foreclosing judicial review of the matter.
As to Urciuoli claim that “under Civil Service Law §50(4), respondents were required to rescind his application within three years of the triggering event,” the court said that it “declined to review that claim in the interest of justice….” However, said the Appellate Division, as “an alternative holding,” it found that the also lacks merit.
§50(4), said the court, permits the disqualification of an employee beyond three years in the event of an applicant's fraudulent misstatement or omission of material facts. Here documentary evidence amply established that Urciuoli “deliberately concealed his arrest in Jamaica in connection with charges that he possessed, was dealing in, and tried to export a significant quantity of marijuana.”
The Appellate Division said that this “deliberate concealment and omissions of relevant information” were designed to fraudulently ensure that he obtained, and then retained, his employment as a police officer, and justified his termination.
§50(4), in pertinent part, provides that “Notwithstanding the provisions of this subdivision or any other law, the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his application, examination or appointment, may revoke such eligible's certification and appointment and direct that his employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud [emphasis supplied].
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05876.htm
Urciuoli v Department of Citywide Admin. Servs., 2010 NY Slip Op 05876, Decided on July 1, 2010, Appellate Division, First Department
The New York City Department of Citywide Administrative Services advised Gerard Urciuoli that it was retroactively rescinding its approval his application for employment as a New York City police officer and decertifying that he was qualified for such an appointment, thereby effectively terminating his employment. Urciuoli was also advised that he could appeal the Department of Citywide Administration’s determination to the New York City Civil Service Commission.
Instead of appealing to the Commission, Urciuoli opted to file his appeal with Supreme Court. Supreme Court dismissed his petition and the Appellate Division affirmed the lower court’s ruling, explaining that Urciuoli had failed to exhaust his administrative remedies, thus foreclosing judicial review of the matter.
As to Urciuoli claim that “under Civil Service Law §50(4), respondents were required to rescind his application within three years of the triggering event,” the court said that it “declined to review that claim in the interest of justice….” However, said the Appellate Division, as “an alternative holding,” it found that the also lacks merit.
§50(4), said the court, permits the disqualification of an employee beyond three years in the event of an applicant's fraudulent misstatement or omission of material facts. Here documentary evidence amply established that Urciuoli “deliberately concealed his arrest in Jamaica in connection with charges that he possessed, was dealing in, and tried to export a significant quantity of marijuana.”
The Appellate Division said that this “deliberate concealment and omissions of relevant information” were designed to fraudulently ensure that he obtained, and then retained, his employment as a police officer, and justified his termination.
§50(4), in pertinent part, provides that “Notwithstanding the provisions of this subdivision or any other law, the state civil service department or appropriate municipal commission may investigate the qualifications and background of an eligible after he has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his disqualification, or upon a finding of illegality, irregularity or fraud of a substantial nature in his application, examination or appointment, may revoke such eligible's certification and appointment and direct that his employment be terminated, provided, however, that no such certification shall be revoked or appointment terminated more than three years after it is made, except in the case of fraud [emphasis supplied].
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05876.htm
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