Oregon retired police officers do not have a property interest in continuing in the health insurance plan available to police officers on active duty
Doyle v City of Medford, USCA, 9th Circuit, No. 09-16037
Although the City of Medford, Oregon did not provide health insurance coverage to its retired police officers upon their retirement, the retirees could elect to remain covered in the City’s plan for 18 months after their retirement under the Consolidated Omnibus Budget Reconciliation Act of 1985, COBRA, 29 U.S.C. §§1161-1168.
After that 18-month period, the retired police officer could enroll in the Oregon Public Employees Retirement System Health Insurance Program. The City made employer contributions to the Retirement System’s Health Insurance Program.
Ronald Doyle and other retired police officers sued the City and its City Manager, Michael Dyal, contending that they should be provide with the same health insurance coverage available to active police officers pursuant to a collective bargaining agreement between the City and the employee organization representing the police officers upon their retirement.
The US Court of Appeals, Ninth Circuit, ruled that the City of Medford’s decision to deny “active employee” health insurance coverage to its retired police officers did not violate their due process rights as Oregon Revised Statutes §243.303 did not create a property interest in having such health insurance coverage continue into retirement. Accordingly, said the court, the retired police officers lacked a legally protected property interest to the health insurance benefits available to active City police officers under the controlling collective bargaining agreement.
Noting that §243.303 provides that “A local government must make health insurance coverage available to retirees only if the government offers such coverage to current officers and employees,” the Circuit Court held that such a provision did not bar a jurisdiction from considering “real-world circumstances” that could excuse its obligation to cover retirees, citing Town of Castle Rock v. Gonzales, 545 U.S. 748.
In contrast, in Armistead v Vernitron Corp., 944 F.2d 1287, the Circuit Court of Appeals, Sixth Circuit, affirmed a lower court ruling that held that when a collective bargaining agreement is intended to give retirees with lifetime health and life insurance benefits, such benefits were not subject to unilateral termination.
N.B. “Participating employers” in the State's Employee Health Insurance Plan must allow employees to continue in the plan upon retirement [§163.4, Civil Service Law] and are required to pay "not less than fifty percentum of the cost of ... the coverage of its employees and retired employees ... [and] not less than thirty-five percentum ... for the coverage of dependents of employees and retired employees..." [§167.2, Civil Service Law].
The Doyle decision is posted on the Internet at:
http://scholar.google.com/scholar_case?case=13582283851357318805&hl=en&as_sdt=2&as_vis=1&oi=scholarr
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 29, 2010
Books from the Public Employment Law Press
Books from the Public Employment Law Press
For information about PELP's e-book Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
For information about PELP's The Discipline Book, now available in both an e-book and in a softcover format, go to: http://booklocker.com/books/3449.html
For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://booklocker.com/books/3916.html
For information about PELP's e-book Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
For information about PELP's The Discipline Book, now available in both an e-book and in a softcover format, go to: http://booklocker.com/books/3449.html
For information about PELP's e-book Disability Retirement and General Municipal Law Sections 207-a/c go to: http://booklocker.com/books/3916.html
July 28, 2010
An individual must prove his or her case by a “preponderance of the evidence” in order to prevail at a “name-clearing hearing”
An individual must prove his or her case by a “preponderance of the evidence” in order to prevail at a “name-clearing hearing”
Casale v Metropolitan Transp. Auth., 2010 NY Slip Op 06218, decided on July 27, 2010, Appellate Division, First Department
Nicholas Casale, claiming that certain statements in the Metropolitan Transportation Authority's letter to him terminating his employment* characterizing his actions as “dishonest” were false, demanded a name-clearing hearing.**
The hearing officer ruled that Casale was required to prove that the Authority’s statements to which he objected were false by a preponderance of the evidence and that Casale failed to meet this test.
The hearing officer found that Casle had repeatedly mischaracterized his source of information in an investigation of corruption as a confidential informant, concluding that “this conduct was dishonest.”
The Appellate Division said that such a determination by a hearing officer is not foreclosed as a matter of law even if the hearing officer believed that Casale was acting to benefit the Authority rather than for his own personal gain. The court said that the hearing officer is to determine the issue of an employee's dishonesty “with reference to the employer's general business or the employee's own functions and that is precisely what occurred here.”
Nor, said the court, did the hearing officer exceed his jurisdiction in "finding that petitioner engaged in a pattern of dishonesty." The terms of the stipulation governing the name-clearing hearing did not limit the inquiry to the fabrication of the existence of a confidential informant.
* Although Casale’s tenure status is not indicated in the decision, typically New York courts have directed "name-clearing hearings" for probationary employees and for employee without tenure who allege that they have been "stigmatized" as a result of “State action” and the employer has made such "stigmatizing" information public.
** A name clearing hearing serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by his or her former employer. Courts have held that the internal disclosure of allegedly stigmatizing reasons for the discharge or demotion of an employee to the individual and, or, to agency administrators “having a right to know” does not constitute a public disclosure of such information and thus a name-clearing hearing" is not required because of such intra-agency communications.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06218.htm
Casale v Metropolitan Transp. Auth., 2010 NY Slip Op 06218, decided on July 27, 2010, Appellate Division, First Department
Nicholas Casale, claiming that certain statements in the Metropolitan Transportation Authority's letter to him terminating his employment* characterizing his actions as “dishonest” were false, demanded a name-clearing hearing.**
The hearing officer ruled that Casale was required to prove that the Authority’s statements to which he objected were false by a preponderance of the evidence and that Casale failed to meet this test.
The hearing officer found that Casle had repeatedly mischaracterized his source of information in an investigation of corruption as a confidential informant, concluding that “this conduct was dishonest.”
The Appellate Division said that such a determination by a hearing officer is not foreclosed as a matter of law even if the hearing officer believed that Casale was acting to benefit the Authority rather than for his own personal gain. The court said that the hearing officer is to determine the issue of an employee's dishonesty “with reference to the employer's general business or the employee's own functions and that is precisely what occurred here.”
Nor, said the court, did the hearing officer exceed his jurisdiction in "finding that petitioner engaged in a pattern of dishonesty." The terms of the stipulation governing the name-clearing hearing did not limit the inquiry to the fabrication of the existence of a confidential informant.
* Although Casale’s tenure status is not indicated in the decision, typically New York courts have directed "name-clearing hearings" for probationary employees and for employee without tenure who allege that they have been "stigmatized" as a result of “State action” and the employer has made such "stigmatizing" information public.
** A name clearing hearing serves only one purpose - to provide the individual with an opportunity to clear his or her “good name and reputation” in situations where he or she alleges that information of a stigmatizing nature has been made public by his or her former employer. Courts have held that the internal disclosure of allegedly stigmatizing reasons for the discharge or demotion of an employee to the individual and, or, to agency administrators “having a right to know” does not constitute a public disclosure of such information and thus a name-clearing hearing" is not required because of such intra-agency communications.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06218.htm
US Department of Labor COBRA website updated
US Department of Labor COBRA website updated
Source: Labor Department press release
The Department of Labor's Employee Benefits Security Administration has updated its dedicated COBRA web page to reflect the relevant changes resulting from the Unemployment Compensation Extension Act of 2010.
The website address is: http://www.dol.gov/COBRA
Source: Labor Department press release
The Department of Labor's Employee Benefits Security Administration has updated its dedicated COBRA web page to reflect the relevant changes resulting from the Unemployment Compensation Extension Act of 2010.
The website address is: http://www.dol.gov/COBRA
Temporary appointment to a position in the public service
Temporary appointment to a position in the public service
CSEA Local 1000 v NYS Dept. of Civil Service, App Div, 250 A.D.2d 968, Motion to appeal denied, 92 N.Y.2d 808
The State Fair Division of the New York State Department of Agriculture and Markets employed a number of individuals in noncompetitive class or labor class positions and designated them as “temporary employees.” CSEA Local 1000 commenced an Article 78 action to compel the State Department of Civil Service to grant each such individual “permanent employee status.”
A state Supreme Court justice dismissed CSEA’s petition after finding that these employees “were hired as temporary employees and did not thereafter obtain permanent status by operation of law or otherwise....” Accordingly, the Court ruled, these individuals were not legally entitled to permanent status. The Appellate Division affirmed the Supreme Court’s decision.
The rationale underlying the Appellate Division’s decision wasthat the positions in question were not funded by the State. The ability to establish and pay for these positions depended on revenues from the annual State Fair and other non-State revenue sources.
The record showed that the individuals were “appointed to temporary positions” and such appointments were “on a temporary basis.” The decision comments that “fundamentally an unlawful extended period of temporary service cannot ripen into a permanent appointment unless the appointee met all of the requirements for permanent appointment at the time of the temporary appointment,” citing Reis v New York State Housing Finance Agency [77 NY2d 915] and Montero v Lum [68 NY2d 253].
However, it should be noted that the Reis and Montero cases concerned claims of permanent status in competitive class positions advanced by provisional employees. Section 64 of the Civil Service Law provides for temporary appointment, including temporary appointments to positions in the competitive class; Section 65 of the Civil Service Law specifically provides for provisional appointment to competitive class positions.
Nothing in the Civil Service Law precludes making a permanent appointment to a temporary position although such an appointment has the potential of resulting in a “layoff/preferred list” situation. In addition, Section 64.5 of the Civil Service Law authorizes permanent appointment to an encumbered position under certain circumstances. Section 64.5 appointments are commonly referred to as “contingent permanent appointments.”
In any event, an appointment to a temporary position should be distinguished from a personnel transaction involving the appointment of individual to a position “temporarily vacant” due to the permanent incumbent being on a leave of absence without pay. Generally, a reference to a “temporary position” reflects financial considerations, such as the source of funding or the continued availability of funds. In contrast, “temporary appointment” reflects the employment status of the individual and the tenure rights, if any, that flow from such status. Accordingly, there is a significant difference between a “temporary position” and a “temporary appointment.”
To illustrate the need to distinguish between the status of a position and the status of an individual serving in a position, the Appellate Division did not have any trouble holding that permanently appointing a candidate on an eligible list to a non-existent position just before the list expired did not offend the Civil Service Law. The appointment was made “from the old list” in anticipation of a vacancy that would result upon the retirement of the then incumbent a few weeks later. The Appellate Division dismissed the action brought by individuals on the new eligible list for the position challenging the appointment to a position that did not exist.
CSEA Local 1000 v NYS Dept. of Civil Service, App Div, 250 A.D.2d 968, Motion to appeal denied, 92 N.Y.2d 808
The State Fair Division of the New York State Department of Agriculture and Markets employed a number of individuals in noncompetitive class or labor class positions and designated them as “temporary employees.” CSEA Local 1000 commenced an Article 78 action to compel the State Department of Civil Service to grant each such individual “permanent employee status.”
A state Supreme Court justice dismissed CSEA’s petition after finding that these employees “were hired as temporary employees and did not thereafter obtain permanent status by operation of law or otherwise....” Accordingly, the Court ruled, these individuals were not legally entitled to permanent status. The Appellate Division affirmed the Supreme Court’s decision.
The rationale underlying the Appellate Division’s decision wasthat the positions in question were not funded by the State. The ability to establish and pay for these positions depended on revenues from the annual State Fair and other non-State revenue sources.
The record showed that the individuals were “appointed to temporary positions” and such appointments were “on a temporary basis.” The decision comments that “fundamentally an unlawful extended period of temporary service cannot ripen into a permanent appointment unless the appointee met all of the requirements for permanent appointment at the time of the temporary appointment,” citing Reis v New York State Housing Finance Agency [77 NY2d 915] and Montero v Lum [68 NY2d 253].
However, it should be noted that the Reis and Montero cases concerned claims of permanent status in competitive class positions advanced by provisional employees. Section 64 of the Civil Service Law provides for temporary appointment, including temporary appointments to positions in the competitive class; Section 65 of the Civil Service Law specifically provides for provisional appointment to competitive class positions.
Nothing in the Civil Service Law precludes making a permanent appointment to a temporary position although such an appointment has the potential of resulting in a “layoff/preferred list” situation. In addition, Section 64.5 of the Civil Service Law authorizes permanent appointment to an encumbered position under certain circumstances. Section 64.5 appointments are commonly referred to as “contingent permanent appointments.”
In any event, an appointment to a temporary position should be distinguished from a personnel transaction involving the appointment of individual to a position “temporarily vacant” due to the permanent incumbent being on a leave of absence without pay. Generally, a reference to a “temporary position” reflects financial considerations, such as the source of funding or the continued availability of funds. In contrast, “temporary appointment” reflects the employment status of the individual and the tenure rights, if any, that flow from such status. Accordingly, there is a significant difference between a “temporary position” and a “temporary appointment.”
To illustrate the need to distinguish between the status of a position and the status of an individual serving in a position, the Appellate Division did not have any trouble holding that permanently appointing a candidate on an eligible list to a non-existent position just before the list expired did not offend the Civil Service Law. The appointment was made “from the old list” in anticipation of a vacancy that would result upon the retirement of the then incumbent a few weeks later. The Appellate Division dismissed the action brought by individuals on the new eligible list for the position challenging the appointment to a position that did not exist.
July 27, 2010
Employee may be disciplined for refusing to cooperate in a non-disciplinary investigation interview
Employee may be disciplined for refusing to cooperate in a non-disciplinary investigation interview
NYC Health and Hospital Corporation v Jones, OATH Index #1100/10
Karin Jones, a clerical employee at a City hospital, was charged with misconduct arising from an incident involving a mother strike or push her young child during a visit to the hospital.
Jones was charged with failure to cooperate in an official investigation because she would not answer questions unless her union representative was present.
OATH Administrative Law Judge Faye Lewis sustained one charge based upon Jones’ refusal to answer questions asked by the hospital's child protective coordinator. The coordinator was conducting a “time-sensitive investigation,” i.e., to determine if a reportable event had occurred while the mother and child were still at the hospital. At this point – the “first interview -- the coordinator wanted to find out what Jones had seen.
As the focus of the first interview was “investigatory” rather than “disciplinary” insofar as Jones was concerned, the Administrative Law Judge ruled that Jones could be disciplined for refusing to cooperate with the child protective coordinator in the course of the “first interview.”
In contrast, ALJ Lewis dismissed charges based upon Jones’ refusal to answer questions asked by her supervisors in the course of a second interview without her union representative present. In this instance the ALJ found that the supervisor’s questioning Jones was primarily focused upon her failure to cooperate and thus it was reasonable for Jones to believe that providing information during this second interview could lead to disciplinary action.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1100.pdf
NYC Health and Hospital Corporation v Jones, OATH Index #1100/10
Karin Jones, a clerical employee at a City hospital, was charged with misconduct arising from an incident involving a mother strike or push her young child during a visit to the hospital.
Jones was charged with failure to cooperate in an official investigation because she would not answer questions unless her union representative was present.
OATH Administrative Law Judge Faye Lewis sustained one charge based upon Jones’ refusal to answer questions asked by the hospital's child protective coordinator. The coordinator was conducting a “time-sensitive investigation,” i.e., to determine if a reportable event had occurred while the mother and child were still at the hospital. At this point – the “first interview -- the coordinator wanted to find out what Jones had seen.
As the focus of the first interview was “investigatory” rather than “disciplinary” insofar as Jones was concerned, the Administrative Law Judge ruled that Jones could be disciplined for refusing to cooperate with the child protective coordinator in the course of the “first interview.”
In contrast, ALJ Lewis dismissed charges based upon Jones’ refusal to answer questions asked by her supervisors in the course of a second interview without her union representative present. In this instance the ALJ found that the supervisor’s questioning Jones was primarily focused upon her failure to cooperate and thus it was reasonable for Jones to believe that providing information during this second interview could lead to disciplinary action.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1100.pdf
Advisory arbitration recommendation neither binding on the parties nor subject to "confirmation" pursuant to CPLR Article 75
Advisory arbitration recommendation neither binding on the parties nor subject to "confirmation" pursuant to CPLR Article 75
CSEA Local 1000 v Nassau County, Appellate Division, 251 A.D.2d 328
The CSEA and Nassau County submitted a grievance to advisory arbitration. The arbitrator issued an “advisory recommendation” in CSEA’s favor. When the county refused to implement the arbitrator’s recommendation, CSEA brought an action pursuant to Article 75 of the Civil Practice Law and Rules in an effort to “confirm” the recommendation, thereby requiring the county to implement it.
The Appellate Division affirmed a Supreme Court justice’s dismissal of CSEA’s Article 75 petition. The Court explained that under the circumstances, “the advisory arbitrator’s recommendation never became binding upon the County.”
The decision points out the significant difference between binding arbitration and advisory arbitration.
In binding arbitration, the prevailing party is able to enforce an award issued by the arbitrator through an Article 75 proceeding. No similar procedure is available to the prevailing party in an advisory arbitration.
CSEA Local 1000 v Nassau County, Appellate Division, 251 A.D.2d 328
The CSEA and Nassau County submitted a grievance to advisory arbitration. The arbitrator issued an “advisory recommendation” in CSEA’s favor. When the county refused to implement the arbitrator’s recommendation, CSEA brought an action pursuant to Article 75 of the Civil Practice Law and Rules in an effort to “confirm” the recommendation, thereby requiring the county to implement it.
The Appellate Division affirmed a Supreme Court justice’s dismissal of CSEA’s Article 75 petition. The Court explained that under the circumstances, “the advisory arbitrator’s recommendation never became binding upon the County.”
The decision points out the significant difference between binding arbitration and advisory arbitration.
In binding arbitration, the prevailing party is able to enforce an award issued by the arbitrator through an Article 75 proceeding. No similar procedure is available to the prevailing party in an advisory arbitration.
Buying back retirement credit
Buying back retirement credit
Whalen v Whalen, Rockland County Supreme Court, [Not published in the Official Reports]
Buying back or purchasing retirement system service credit when possible is usually viewed as a good decision on the part of system member as it will generally increase the member’s ultimate retirement allowance. But such action may generate unanticipated legal consequences, as demonstrated by the Whalen case.
Whalen v Whalen is a divorce action. One of the elements considered by the court in connection with the distribution of the “marital assets” was the value of any retirement benefits due the husband flowing from his membership in the New York State Teachers’ Retirement System [TRS].
According to the decision, the husband withdrew from TRS when he left New York State to teach in Connecticut. He then returned to teaching in New York and rejoined TRS.
Also a factor in the court’s analysis was a prenuptial agreement, a post nuptial agreement and a joint will, none of which referred to “pension benefits.”
The husband had “cashed in” his membership in TRS [Education Law Section 503(3)] when he left the state. He subsequently repurchased his prior member service credit when he rejoined the system by paying the required contributions [Section 509, Education Law]. Thus, said the wife, her former husband’s TRS retirement benefits were “marital property” and therefore subject to distribution; her former husband argued that his retirement benefits were “separate property” under a prenuptial agreement.
Whalen's former wife prevailed.
According to the decision by Justice Miller, “the pension credits earned by [husband] ... had [he] not cashed them in, would undoubtedly have been his separate property. Once cashed in, however, the pension credits were, at best, a potential but dormant asset, of no value until the [husband] fulfilled certain statutory requirement. The assets reacquired a value during the marriage, when [the husband] fulfilled his obligations with respect to employment and repaid his contributions with marital funds. ... To the extent that the [husband’s] pension acquired an enhanced value during the marriage, that enhance value is marital property.”
Also a factor in the action was the husband’s retirement benefit from the State of Connecticut’s Teachers’ Retirement System, which also involved a “cash-out” and his subsequent rejoining that system.
The court said that a determination of the value of marital assets resulting from such membership must await a trial, at which time “the parties must offer sufficient evidence of the value of the [Connecticut] pension on the date of the commencement of this action and the difference, if any, in the value of the pension which resulted from the payments made during the marriage to repurchase past [Connecticut] credits.”
Whalen v Whalen, Rockland County Supreme Court, [Not published in the Official Reports]
Buying back or purchasing retirement system service credit when possible is usually viewed as a good decision on the part of system member as it will generally increase the member’s ultimate retirement allowance. But such action may generate unanticipated legal consequences, as demonstrated by the Whalen case.
Whalen v Whalen is a divorce action. One of the elements considered by the court in connection with the distribution of the “marital assets” was the value of any retirement benefits due the husband flowing from his membership in the New York State Teachers’ Retirement System [TRS].
According to the decision, the husband withdrew from TRS when he left New York State to teach in Connecticut. He then returned to teaching in New York and rejoined TRS.
Also a factor in the court’s analysis was a prenuptial agreement, a post nuptial agreement and a joint will, none of which referred to “pension benefits.”
The husband had “cashed in” his membership in TRS [Education Law Section 503(3)] when he left the state. He subsequently repurchased his prior member service credit when he rejoined the system by paying the required contributions [Section 509, Education Law]. Thus, said the wife, her former husband’s TRS retirement benefits were “marital property” and therefore subject to distribution; her former husband argued that his retirement benefits were “separate property” under a prenuptial agreement.
Whalen's former wife prevailed.
According to the decision by Justice Miller, “the pension credits earned by [husband] ... had [he] not cashed them in, would undoubtedly have been his separate property. Once cashed in, however, the pension credits were, at best, a potential but dormant asset, of no value until the [husband] fulfilled certain statutory requirement. The assets reacquired a value during the marriage, when [the husband] fulfilled his obligations with respect to employment and repaid his contributions with marital funds. ... To the extent that the [husband’s] pension acquired an enhanced value during the marriage, that enhance value is marital property.”
Also a factor in the action was the husband’s retirement benefit from the State of Connecticut’s Teachers’ Retirement System, which also involved a “cash-out” and his subsequent rejoining that system.
The court said that a determination of the value of marital assets resulting from such membership must await a trial, at which time “the parties must offer sufficient evidence of the value of the [Connecticut] pension on the date of the commencement of this action and the difference, if any, in the value of the pension which resulted from the payments made during the marriage to repurchase past [Connecticut] credits.”
July 26, 2010
The controlling statute of limitations for filing an Article 78 petition challenging an administrative decision may be set out in another law
The controlling statute of limitations for filing an Article 78 petition challenging an administrative decision may be set out in another law
Hayes v City of NY Dept. of Citywide Admin. Servs., 2010 NY Slip Op 20289, Decided on July 20, 2010, Supreme Court, New York County, Judge Alexander W. Hunter
New York City Fire Captain Robert Hayes applied for and took the Promotion to Battalion Chief Examination No. 8511.
The Test Validation Board rating this examination initially advised the candidates that it proposed the correct answers to questions 15, 46, and 85 as A, A, and D, respectively, Hayes had selected these as correct answers to these questions. However, the final determination by the Test Validation Board allowed A, B, C, and D as correct answers for each of the three questions.
Hayes objected to the Board’s decision, contending that in allowing A, B, C, and D to be deemed correct answers for each of these questions rather allowing only alternate answers that were as good as or better than the proposed answers upon protest, the Board effectively deleted the three questions thereby exceeding its authority under Civil Service Law §50-a.*
Judge Hunter dismissed Hayes’ Article 78 petition seeking to vacate the Board’s final decision as untimely. Although Hayes had filed his petition within the “four month statute of limitations” typically applicable in challenging an administrative determination, in this instance §50-a required that such a petition had to be filed within thirty days “of service of the notice of availability of the determination of the test validation board upon the protesting candidate….”
In the words of the court, “Hayes was given notice of the validation board's determination on December 17, 2009 and did not file a petition under Article 78 until April 12, 2010, nearly four months later, and nearly three months after the 30-day requirement as set forth in Civil Service Law § 50-a. Therefore, this petition is outside of the statute of limitations and is hereby dismissed.”
As to Hayes’ argument that the time limits set out in §50-a did not apply in this instance, Judge Hunter explained that although “The purpose of an Article 78 proceeding, utilizing C.P.L.R. §7803[3] as this case does specifically, is to permit the aggrieved candidate an opportunity to argue why the determination of the administrative agency was ‘made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion .’ … This is precisely the issue at bar and within the scope of Civil Service Law §50-a.”
N.B. Exceptions to “the ususal” statutes of limitations are sometimes set out in law. For example, although an Article 75 petition seeking to confirm or vacate an arbitration award “must be filed ninety days after its delivery,” Education Law Section 3020-a(5) requires that an Article 75 petition challenging the arbitration award resulting from a Section 3020-a disciplinary hearing to be filed “Not later than ten days after receipt of the hearing officer's decision” in order to be timely.
* Civil Service Law §50-a authorizes “test validation boards” to determine the correct scoring of civil service examinations for positions in the competitive class within the jurisdiction of the New York City Department of Personnel and provides that “the test validation board shall make a determination whether the answers elected by the protesting candidates are as good as or better than the proposed key answers or whether the rating guide should be modified and shall give reasons therefor in an opinion in writing.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20289.htm
Hayes v City of NY Dept. of Citywide Admin. Servs., 2010 NY Slip Op 20289, Decided on July 20, 2010, Supreme Court, New York County, Judge Alexander W. Hunter
New York City Fire Captain Robert Hayes applied for and took the Promotion to Battalion Chief Examination No. 8511.
The Test Validation Board rating this examination initially advised the candidates that it proposed the correct answers to questions 15, 46, and 85 as A, A, and D, respectively, Hayes had selected these as correct answers to these questions. However, the final determination by the Test Validation Board allowed A, B, C, and D as correct answers for each of the three questions.
Hayes objected to the Board’s decision, contending that in allowing A, B, C, and D to be deemed correct answers for each of these questions rather allowing only alternate answers that were as good as or better than the proposed answers upon protest, the Board effectively deleted the three questions thereby exceeding its authority under Civil Service Law §50-a.*
Judge Hunter dismissed Hayes’ Article 78 petition seeking to vacate the Board’s final decision as untimely. Although Hayes had filed his petition within the “four month statute of limitations” typically applicable in challenging an administrative determination, in this instance §50-a required that such a petition had to be filed within thirty days “of service of the notice of availability of the determination of the test validation board upon the protesting candidate….”
In the words of the court, “Hayes was given notice of the validation board's determination on December 17, 2009 and did not file a petition under Article 78 until April 12, 2010, nearly four months later, and nearly three months after the 30-day requirement as set forth in Civil Service Law § 50-a. Therefore, this petition is outside of the statute of limitations and is hereby dismissed.”
As to Hayes’ argument that the time limits set out in §50-a did not apply in this instance, Judge Hunter explained that although “The purpose of an Article 78 proceeding, utilizing C.P.L.R. §7803[3] as this case does specifically, is to permit the aggrieved candidate an opportunity to argue why the determination of the administrative agency was ‘made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion .’ … This is precisely the issue at bar and within the scope of Civil Service Law §50-a.”
N.B. Exceptions to “the ususal” statutes of limitations are sometimes set out in law. For example, although an Article 75 petition seeking to confirm or vacate an arbitration award “must be filed ninety days after its delivery,” Education Law Section 3020-a(5) requires that an Article 75 petition challenging the arbitration award resulting from a Section 3020-a disciplinary hearing to be filed “Not later than ten days after receipt of the hearing officer's decision” in order to be timely.
* Civil Service Law §50-a authorizes “test validation boards” to determine the correct scoring of civil service examinations for positions in the competitive class within the jurisdiction of the New York City Department of Personnel and provides that “the test validation board shall make a determination whether the answers elected by the protesting candidates are as good as or better than the proposed key answers or whether the rating guide should be modified and shall give reasons therefor in an opinion in writing.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20289.htm
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
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.
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
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
July 23, 2010
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.
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.
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.
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.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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