The disclosure of mediation discussions in violation of a confidentiality agreement may subject a party to sanctions

The disclosure of mediation discussions in violation of a confidentiality agreement may subject a party to sanctions

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Spoth v. M/Y Sandi Beaches, 2010 WL 2710525 (W.D.N.Y.July 7, 2010) (not available on internet), is an interesting case that discusses the possibility of sanctions if a party discloses confidences learned in court annexed mediation.

Scholars and lawyers may find this case of interest.

Mitchell H. Rubinstein

Individual terminated based on a defective disciplinary decision by the appointing authority entitled to reinstatement with back pay

Individual terminated based on a defective disciplinary decision by the appointing authority entitled to reinstatement with back pay
Ernst v Saratoga County, Appellate Division, 251 A.D.2d 866

Saratoga County filed disciplinary charges against Donald P. Ernst, its director of data processing, alleging misconduct and incompetency based on complaints of sexual harassment filed by a number of women supervised by Ernst.

Ernst was found guilty of the charges and the County Board dismissed him from his position effective December 20, 1994. The Appellate Division, however, annulled the determination. The court said that one of the County’s officials [Sullivan] “improperly participated in the final determination” and there was no evidence “that the members of the Board had an opportunity to review the [disciplinary hearing] record” before making its decision. It returned the matter to the Board for a redetermination (Ernst v Saratoga County, 234 AD2d 764).

Each member of the Board then reviewed the hearing record and, without Sullivan’s participation, on February 25, 1997 voted to terminate Ernst retroactive to December 20, 1994. The Board also rejected Ernst’s claim for back salary for the period December 20, 1996 through February 25, 1997.

Ernst appealed, contending that:

1. The decision to terminate him was arbitrary and capricious; and

2. He was entitled to back salary.

The Appellate Division upheld the Board’s determination dismissing Ernst from his position, ruling that the record contained substantial evidence supporting the Board’s decision. In addition, the court concluded that the penalty imposed met the Pell standard [Pell v Board of Education, 34 NY2d 222] as it was “not shocking to one’s sense of fairness” in view of the offenses for which Ernst was found guilty.

The question of back salary and benefits, however, was another matters. Here the court decided that Ernst was entitled to back salary for the period from his initial termination in 1994 and his subsequent termination in 1997 “less any compensation derived from other employment during that period and any unemployment insurance benefits received for that period.”*

According to the ruling, “a proper termination cannot be extended retroactively to cover a prior period of termination annulled due to procedural failures.”

* NB: In 1985 Section 77 of the Civil Service Law was amended eliminating the deduction for “compensation derived from other employment” upon reinstatement by court order. The same is true with respect to reinstatements directed by a civil service commission pursuant to Section 76 of the Civil Service Law. In contrast, back pay issues are unlikely to arise in disciplinary actions brought pursuant to Section 3020-a of the Education Law as that statute provides that such disciplinary suspensions must be with pay unless (1) the individual has been convicted or entered a guilty plea in a criminal action involving drugs or the physical or sexual abuse of a minor or student or (2) a Taylor Law agreement permits disciplinary suspensions without pay upon the serving of Section 3020-a charges.

Commissioner of Education no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacher

Commissioner of Education no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacher
Appeal of Nicola A. DeMarco from action of the New York City Department of Education regarding disciplinary charges, Decisions of the Commissioner of Education, No. 15,850,

Nicola A. DeMarco, a tenured teacher employed by the New York City Department of Education [DOE], was served with disciplinary charges initiated by his principal at Louis Armstrong Middle School.

DeMarco demanded a hearing on the charges to be conducted by a three-member panel* pursuant to Education Law §3020-a, and also demanded dismissal of the charges on the ground that “disciplinary charges pursuant to §3020-a may not be initiated by a principal without review and approval by higher authority.”

DOE refused DeMarco’s demands on the grounds that it had adopted alternate disciplinary procedures as authorized by Education Law §3020(4);** its agreement with the United Federation of Teachers did not provide for three-member disciplinary panels; and … the authority to initiate disciplinary charges had been properly delegated to principals by the Community Superintendent of Community School District involved.

The Commission dismissed DeMarco’s appeal for lack of personal jurisdiction after finding that DeMarco had not served the only agent authorized to accept service of his appeal on behalf of the DOE, the Office of the Corporation Counsel.

In addition, the Commissioner said that DeMarco’s appeal had to be dismissed because, as Commissioner, he no longer had subject matter jurisdiction. Education Law §3020-a was substantially amended in 1994 and the Commissioner no longer had jurisdiction to review either final or nonfinal determinations by disciplinary hearing officers.

The amendment, said the Commissioner, “specifically gives the hearing officer authority to hear and decide all motions, including, but not limited to, motions to dismiss disciplinary charges, citing Education Law §3020-a[c][iii] and [iv].” Accordingly, concluded the Commissioner, DeMarco’s request that he dismiss the charges would require a review of the merits, which review was no longer within his jurisdiction.

* §3020-a.2(c) provides that in the event the disciplinary charges concern pedagogical incompetence or issues involving pedagogical judgment, the educator may elect to have the hearing conducted by either a single hearing officer or a three-member panel. All other charges are to be heard by a single hearing officer.

** As the Court of Appeals indicated in Antinore v State, 40 NY2d 6, a collective bargaining agreement may provide for alternatives to the statutory provisions provided such modifications are consistent with administrative due process.

The full text of the Commissioners decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume48/d15850.htm

Applying the Rule of Three when there are tied scores involved

Applying the Rule of Three when there are tied scores involved
Source: A Google Alert received by NYPPL

A "Google Alert" received by NYPPL via the Internet concerned applying the Rule of Three set out in §61.1 of the Civil Service Law based on the following facts:

“I scored a 100 on a New York State civil service promotional exam. There were 7 openings for supervisor. Five candidates scored a 100. One of the four declined the promotional opportunity. The promotions were given to two eligibles who scored 100, four eligibles who scored 95, and one eligible who scored a 90.

“I am familiar with the "rule of three" and have researched New York State Civil Law, NYS CSL 61.1 in particular. Every example that is given refers to a situation in which one promotional opportunity is available. For example, if one eligible scores 100, one eligible scores 95, and one eligible scores 90, and all the other candidates score lower than 90, the rule of three means that the eligible who scored the 90 can be given the promotion over the two eligibles who scored higher that he/she did.

“However, I did not come across an example of how the rule of three would work when more than one position is available.”

NYPPL’s response:*

Considering the application of the Rule of Three on a “step-by-step basis,” the Rule of Three “works” as follows:

1. As to the five candidates receiving a score of 100, as one has declined, the four remaining eligibles are certified. Two are appointed, resulting in five vacancies yet remaining to which appointments may be made.**

2. The next group of candidates eligible for selection for appointment would consist of the two remaining candidates scoring 100 plus the four eligibles that received a score of 95, a total of six eligibles. The four eligibles attaining a score of 95 are appointed, leaving one vacancy yet to fill.

3. The next group of candidates eligible for selection for appointment would consist of the two candidates with a score of 100 and the one [or more] eligibles attaining a score of 90. A candidate who received a score of 90 on the examination may be lawfully selected, thereby filling the last available vacancy, without offending the Rule of Three.

Another example:

Ten candidates received scores of 100 while four achieved scores of 95 and one candidate had a score of 90. Again, one of the candidates attaining a score of 100 declines, leaving nine candidates with scores of 100 interested in being appointed. With seven vacancies available for appointment, the appointing authority may fill all, some or none of the vacancies but only the nine interested candidates attaining scores of 100 are "reachable" for appointment. Candidates receiving a score of less than 100 are not included on the list certified for appointment and thus are not part of the candidate pool. Why? Because once six appointments are made from among the nine eligibles attaining a score of 100, three eligibles remain available for selection to fill the seventh and last vacancy, thus triggering the Rule of Three.

If, however, a second eligible attaining a score of 100 were to decline the appointment, all four eligibles with a score of 95 would become eligible for appointment and they, together with the remaining eight eligibles have a score of 100, would constitute a pool of twelve individuals reachable for appointment and the appointing authority could select any seven of the twelve for the appointment.***

In other words, the number of candidates eligible for appointment at any particular point in time is a "moving target."

[NYPPL periodically post answers to selected general questions concerning public personnel law issues. Readers may e-mail their question to publications@nycap.rr.com]

* This analysis assumes that the "entire eligible list" consisted of ten eligibles: five candidates attaining a score of 100, four candidates attaining a score of 95 and one candidate attaining a score of 90. However, had there been more than one candidate attaining a score of 90, all the eligibles attaining a score of 90 would have been in the "candidate pool."

** N.B. An appointing authority is not required to use a mandatory eligible list and may, as a matter of discretion, elect not to fill the vacancy. On the other hand, an appointing authority may use a “non-mandatory” eligible list to fill a vacancy either on a permanent basis or on a provisional basis. However, if the appointing authority makes a provisional appointment “from a nonmandatory list,” the appointee may attain tenure in the position under certain circumstances [see Civil Service Law §65.4.] The seminal case that considered such an appointment situation is Matter of Roulette, 40 AD2d 611.

*** In some departments and agencies the appointing authority may elect, or pursuant to the terms of a collective bargaining agreement, be required to fill vacancies on the basis of the "Rule of the List" whereby individuals on an eligible list are appointed in the order of their rank or position on the list.

Vacating an arbitration award based on allegations that the arbitrator was not impartial

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.

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.

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.