Excessive absenteeism could result in dismissal from service
Fischer v Smithtown CSD, 262 AD2d 560
A Section 3020-a arbitrator found Joan Fischer guilty of charges filed against her by the Smithtown Central School District alleging neglect of duty and incompetence based on her “excessive absenteeism.” The penalty imposed: termination.
Fischer failed in her attempt to have the award vacated, demonstrating the limited authority given the courts for overturning an arbitration award.
Fisher, however, was initially successful in her appeal, winning an order by a State Supreme Court judge vacating the arbitration award and directing the matter be remitted to the district “for a new hearing.” When the Appellate Division got the case, it reversed the lower court’s ruling and confirmed the arbitration award.
The Appellate Division said that the hearing officer’s determination had a rational basis and was supported by the record.
Significantly, it commented that the evidence at the hearing supported the hearing officer’s determination that Fisher’s “absences disrupted the educational process and adversely affected her students.” The court noted that Fisher “did not demonstrate any basis for vacating the determination pursuant to CPLR 7511,” referring to the appeal procedure set out in Section 3020-a[5] of the Education Law.
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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
October 18, 2010
Exhausting the administrative remedy
Exhausting the administrative remedy
Ciccone v Jacobson, App. Div., First Dept., 262 AD2d 78
Before a public employee may sue his or her employer, he or she generally must have exhausted all forms of “administrative remedy” at the individual’s disposal. Administrative remedy refers simply to appeals procedures outside the courts. One of the most common forms of administrative remedy is a Taylor Law contract grievance procedure.
If the individual claims his or her statutory rights were violated, he or she may be able to proceed directly to the courts. But if the collective bargaining agreement incorporates the law that was allegedly broken, the Ciccone decision holds that individual cannot go directly to the courts but must first seek satisfaction through the grievance procedure.
What constitutes incorporation of a specific law in a Taylor Law agreement? A law may be incorporated “by reference.” That is, if the contract refers to the law, and all matters of dispute involving the contract are to be handled in a grievance procedure, then the individual must use that grievance procedure before he or she has access to the courts.
As Ciccone illustrates, it is necessary to evaluate the availability of “an administrative remedy” such as filing a contract grievance before initiating litigation.
New York City correction officer Joe Ciccone sued his employer, the New York City Department of Corrections, contending it had violated Section 9-117.1(a) of New York City’s administrative code when it refused his claim for sick pay.
The city, however, succeeded in having a court dismiss his Article 78 action on the grounds that Ciccone had failed to exhaust his administrative remedies.
The Appellate Division pointed out that Article XXI, Section 1 of the collective bargaining agreement between Ciccone’s union and the department defined the term “grievance” to include “a claimed violation, misinterpretation or inequitable application of the provisions of [this] Agreement”.
Another contract provision, Article X, Section 2(1), incorporated “by both reference and repetition” Administrative Code Section 9-117.1(a), under which correction officers are entitled to “leave with pay for the full period of any incapacity caused by a service-connected injury.”
The court said that reading these two provisions together requires a finding that Ciccone’s claim for sick pay is a grievance within the meaning of the collective bargaining agreement and, therefore, is subject to the exclusive grievance/arbitration remedies contained in the contract. In other words, the Taylor Law agreement’s contract grievance procedure barred Ciccone from commencing a lawsuit concerning the issue.
Ciccone had argued that he could bring an action in court because the contract also provided that the union’s right to seek arbitration was contingent upon [the union’s] and the represented employee’s “written waiver of the right, if any, ... to submit the underlying dispute to any other administrative or judicial tribunal except for the purpose of enforcing the arbitrator’s award.” The Appellate Division rejected this theory. It said the employee’s refusal to sign a waiver of his presumed right to go to court does not give him the right to sue.
In contrast to the Ciccone decision, a Hauppauge schools employee won the right to sue the school district concerning a salary dispute notwithstanding the contract arbitration provision then in force [Marino v Hauppauge UFSD, decided by the Appellate Division, Second Department [262 AD2d 321]. Frank Marino alleged that the district had violated his rights under Education Law Section 3013. The court said that Marino “had every right to seek redress for the alleged violation of his statutory rights in this proceeding, even after having begun a grievance procedure which related exclusively to an alleged violation of his contract.”
The rationale underlying the Second Department’s decision: “The issues presented and the remedies sought in each forum were separate and distinct.”
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Ciccone v Jacobson, App. Div., First Dept., 262 AD2d 78
Before a public employee may sue his or her employer, he or she generally must have exhausted all forms of “administrative remedy” at the individual’s disposal. Administrative remedy refers simply to appeals procedures outside the courts. One of the most common forms of administrative remedy is a Taylor Law contract grievance procedure.
If the individual claims his or her statutory rights were violated, he or she may be able to proceed directly to the courts. But if the collective bargaining agreement incorporates the law that was allegedly broken, the Ciccone decision holds that individual cannot go directly to the courts but must first seek satisfaction through the grievance procedure.
What constitutes incorporation of a specific law in a Taylor Law agreement? A law may be incorporated “by reference.” That is, if the contract refers to the law, and all matters of dispute involving the contract are to be handled in a grievance procedure, then the individual must use that grievance procedure before he or she has access to the courts.
As Ciccone illustrates, it is necessary to evaluate the availability of “an administrative remedy” such as filing a contract grievance before initiating litigation.
New York City correction officer Joe Ciccone sued his employer, the New York City Department of Corrections, contending it had violated Section 9-117.1(a) of New York City’s administrative code when it refused his claim for sick pay.
The city, however, succeeded in having a court dismiss his Article 78 action on the grounds that Ciccone had failed to exhaust his administrative remedies.
The Appellate Division pointed out that Article XXI, Section 1 of the collective bargaining agreement between Ciccone’s union and the department defined the term “grievance” to include “a claimed violation, misinterpretation or inequitable application of the provisions of [this] Agreement”.
Another contract provision, Article X, Section 2(1), incorporated “by both reference and repetition” Administrative Code Section 9-117.1(a), under which correction officers are entitled to “leave with pay for the full period of any incapacity caused by a service-connected injury.”
The court said that reading these two provisions together requires a finding that Ciccone’s claim for sick pay is a grievance within the meaning of the collective bargaining agreement and, therefore, is subject to the exclusive grievance/arbitration remedies contained in the contract. In other words, the Taylor Law agreement’s contract grievance procedure barred Ciccone from commencing a lawsuit concerning the issue.
Ciccone had argued that he could bring an action in court because the contract also provided that the union’s right to seek arbitration was contingent upon [the union’s] and the represented employee’s “written waiver of the right, if any, ... to submit the underlying dispute to any other administrative or judicial tribunal except for the purpose of enforcing the arbitrator’s award.” The Appellate Division rejected this theory. It said the employee’s refusal to sign a waiver of his presumed right to go to court does not give him the right to sue.
In contrast to the Ciccone decision, a Hauppauge schools employee won the right to sue the school district concerning a salary dispute notwithstanding the contract arbitration provision then in force [Marino v Hauppauge UFSD, decided by the Appellate Division, Second Department [262 AD2d 321]. Frank Marino alleged that the district had violated his rights under Education Law Section 3013. The court said that Marino “had every right to seek redress for the alleged violation of his statutory rights in this proceeding, even after having begun a grievance procedure which related exclusively to an alleged violation of his contract.”
The rationale underlying the Second Department’s decision: “The issues presented and the remedies sought in each forum were separate and distinct.”
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Free Speech protections for public employees
Free Speech protections for public employeesFry v McCall, USDC SDNY, 945 F. Supp. 655
In the Fry case, a federal district court judge was asked to determine if a public official’s statements concerning matters alleged to be of “public concern” served as a shield against his or her removal from the position.
Patricia C. Fry sued State Comptroller Carl McCall complaining that she had been dismissed from her position as Director of the Bureau of Budget Analysis with the Office of the State Deputy Comptroller because she spoke out on a matter of public concern and that her discharge deprived her of her First Amendment right to free speech in violation of 42 USC. Section 1983.
Fry alleged that she had been terminated because she had questioned reports concerning a New York City “budget crisis” in 1993 and 1994 and that the Comptroller discharged her because she expressed skepticism about the accuracy or integrity of those reports.
The Comptroller, on the other hand, contended that Fry “had become insubordinate to her supervisor, disruptive at staff meetings, unwilling to cooperate in the preparation of the OSDC reports, and abusive toward a colleague.” In addition, the Comptroller argued that even if he had discharged Fry because of her statements, this “did not violate her First Amendment rights because the State’s interest in the effective and efficient operations of the [agency] outweighed any free speech rights [Fry] may have had.”
The court said that to win her Section 1983 claim for wrongful termination based on a First Amendment violation, Fry was required to prove by a preponderance of the evidence (a) that the speech at issue was constitutionally protected, and (b) that it was a “substantial” or “motivating” factor in the decision to terminate her employment. Judge Koeltl concluded that “Fry has failed to prove by a preponderance of the evidence that her expressions of concern [regarding the reports] were a ‘substantial’ or ‘motivating’ factor in the decision to dismiss her.”
The decision notes that there are a number of relevant factors to be considered in such cases, including [a] the time, manner, and place of the speech; [b] the extent of the disruption caused by the employee’s conduct; [c] the responsibilities of the employee and [d] whether the employee held a policymaking position....” Significantly, the court observed that “[a] high-ranking policy-making employee does not have, and never has had, a First Amendment right to refuse [her] employer’s directive to promote agency policy.”
In Vezzetti v. Pellearini, 22 F.3d 483, the Second Circuit Court of Appeals, which has jurisdiction over New York State, set out a number of guidelines for determining “policymaker status.” To resolve the issue, the courts should determine whether the individual:
(1) Is exempt from civil service protection,
(2) Has some technical competence or expertise,
(3) Controls others,
(4) Is authorized to speak in the name of the policymakers,
(5) Is perceived as a policymaker by the public,
(6) Influences government programs,
(7) Has contact with elected officials, and
(8) Is responsive to partisan politics and political leaders.
The court said that Fry satisfied all of these eight criteria with respect to the issue of her “policymaker” status. Under the Pickering balancing test [see Pickering v Board of Education, 391 U.S. 563], said the court, the Comptroller “justifiably terminated Ms. Fry, a policymaking employee whose behavior not only threatened to become disruptive, but had already become disruptive, in order to preserve the efficiency and effectiveness of the OSDC.”
Having found that Fry “failed to demonstrate that Comptroller McCall, or indeed any state employee, acting under color of state law, deprived her of her right to free speech in violation of the First Amendment”, dismissed her action on the merits and closed the case.
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Hearing officer may not the attorney of a party to draft findings of fact and determination to the attorney of a party in the proceeding
Hearing officer may not the attorney of a party to draft findings of fact and determination to the attorney of a party in the proceeding
LePore v McCall, 262 AD2d 919
This decision illustrates the fact that a hearing officer is responsible for making findings of fact and conclusions of law necessary to support his or her determination and recommendation. These tasks may not be delegated to another, much less to one of the parties involved in the action.
Anthony LePore, a Village of Nyack police officer, was involved in an automobile accident on May 11, 1989 while at work. Although he returned to duty in June 1989, his subsequent attendance at work was “sporadic,” due to his claim of pain and limited mobility. LePore ultimately stopped working on December 15, 1989.
In August 1994, LePore filed applications with New York State Policemens’ and Firemens’ Retirement System [PFRS] seeking accidental disability retirement benefits, or, in the alternative, performance of duty disability retirement benefits. PFRS “administratively” disapproved both of his applications in April 1995 and LePore filed a timely request for an administrative hearing and redetermination.
Hearings were held in May and August 1996 before a PFRS-appointed hearing officer. LePore’s medical experts testified that the injuries that he suffered from the automobile accident are permanent. PFRS’ medical expert testified that there were “no findings to state with any degree of medical certainty that [LePore’s] accident was the competent producing cause of his current condition.”
After hearing all of the testimony presented, the hearing officer issued his decision recommending that LePore’s applications be denied. He sent the decision to PFRS with a request that PFRS’s attorney draft “the findings of fact, conclusions of law and final determination.” The hearing officer did not send a copy of his decision or his request to LePore’s attorney.
PFRS’s attorney complied by preparing the findings of fact and conclusions of law as requested and returned the “decision” with the “findings and conclusions of law” to the hearing officer. The hearing officer signed and returned the decision to PFRS’s attorney on July 25, 1997 for review by the Comptroller. On August 29, 1997, copies of the hearing officer’s determination and the Comptroller’s decision rejecting LePore’s applications were sent to LePore’s attorney.
Complaining that the hearing officer’s action (a) denied him “due process” and (2) constituted a “clear and flagrant violation of State Administrative Procedure Act (SAPA) Section 307 (2), which prohibits ex parte communications [communication between the tribunal and only one of the parties to the proceeding], LePore appealed.
PFRS attempted to persuade the Appellate Division to affirm the Comptroller’s decision because “the hearing officer did not differ significantly from the final determination ultimately rendered by [the Comptroller].”
The Appellate Division rejected PRFS’s contentions, finding that “the procedure employed not only violated SAPA Section 307 (2) but also created such an appearance of impropriety and bias to warrant an annulment of the determination” . The court returned the decision to the Comptroller for a de novo determination [new decision] based on the record presented.
The lesson here is that although the entity that appointed the hearing officer may, based on the record, accept, reject or modify the hearing officer’s findings and recommendation, the findings and recommendation must be the actual “work product” of the hearing officer.
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LePore v McCall, 262 AD2d 919
This decision illustrates the fact that a hearing officer is responsible for making findings of fact and conclusions of law necessary to support his or her determination and recommendation. These tasks may not be delegated to another, much less to one of the parties involved in the action.
Anthony LePore, a Village of Nyack police officer, was involved in an automobile accident on May 11, 1989 while at work. Although he returned to duty in June 1989, his subsequent attendance at work was “sporadic,” due to his claim of pain and limited mobility. LePore ultimately stopped working on December 15, 1989.
In August 1994, LePore filed applications with New York State Policemens’ and Firemens’ Retirement System [PFRS] seeking accidental disability retirement benefits, or, in the alternative, performance of duty disability retirement benefits. PFRS “administratively” disapproved both of his applications in April 1995 and LePore filed a timely request for an administrative hearing and redetermination.
Hearings were held in May and August 1996 before a PFRS-appointed hearing officer. LePore’s medical experts testified that the injuries that he suffered from the automobile accident are permanent. PFRS’ medical expert testified that there were “no findings to state with any degree of medical certainty that [LePore’s] accident was the competent producing cause of his current condition.”
After hearing all of the testimony presented, the hearing officer issued his decision recommending that LePore’s applications be denied. He sent the decision to PFRS with a request that PFRS’s attorney draft “the findings of fact, conclusions of law and final determination.” The hearing officer did not send a copy of his decision or his request to LePore’s attorney.
PFRS’s attorney complied by preparing the findings of fact and conclusions of law as requested and returned the “decision” with the “findings and conclusions of law” to the hearing officer. The hearing officer signed and returned the decision to PFRS’s attorney on July 25, 1997 for review by the Comptroller. On August 29, 1997, copies of the hearing officer’s determination and the Comptroller’s decision rejecting LePore’s applications were sent to LePore’s attorney.
Complaining that the hearing officer’s action (a) denied him “due process” and (2) constituted a “clear and flagrant violation of State Administrative Procedure Act (SAPA) Section 307 (2), which prohibits ex parte communications [communication between the tribunal and only one of the parties to the proceeding], LePore appealed.
PFRS attempted to persuade the Appellate Division to affirm the Comptroller’s decision because “the hearing officer did not differ significantly from the final determination ultimately rendered by [the Comptroller].”
The Appellate Division rejected PRFS’s contentions, finding that “the procedure employed not only violated SAPA Section 307 (2) but also created such an appearance of impropriety and bias to warrant an annulment of the determination” . The court returned the decision to the Comptroller for a de novo determination [new decision] based on the record presented.
The lesson here is that although the entity that appointed the hearing officer may, based on the record, accept, reject or modify the hearing officer’s findings and recommendation, the findings and recommendation must be the actual “work product” of the hearing officer.
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Hearing officer, not the attorney of a party, may draft findings of fact and determinations in the proceeding
Hearing officer, not the attorney of a party, makes the findings of fact and determination in the proceeding
LePore v McCall, 262 AD2d 919
This decision illustrates the fact that a hearing officer is responsible for making findings of fact and conclusions of law necessary to support his or her determination and recommendation. These tasks may not be delegated to another, much less to one of the parties involved in the action.
Anthony LePore, a Village of Nyack police officer, was involved in an automobile accident on May 11, 1989 while at work. Although he returned to duty in June 1989, his subsequent attendance at work was “sporadic,” due to his claim of pain and limited mobility. LePore ultimately stopped working on December 15, 1989.
In August 1994, LePore filed applications with New York State Policemens’ and Firemens’ Retirement System [PFRS] seeking accidental disability retirement benefits, or, in the alternative, performance of duty disability retirement benefits. PFRS “administratively” disapproved both of his applications in April 1995 and LePore filed a timely request for an administrative hearing and redetermination.
Hearings were held in May and August 1996 before a PFRS-appointed hearing officer. LePore’s medical experts testified that the injuries that he suffered from the automobile accident are permanent. PFRS’ medical expert testified that there were “no findings to state with any degree of medical certainty that [LePore’s] accident was the competent producing cause of his current condition.”
After hearing all of the testimony presented, the hearing officer issued his decision recommending that LePore’s applications be denied. He sent the decision to PFRS with a request that PFRS’s attorney draft “the findings of fact, conclusions of law and final determination.” The hearing officer did not send a copy of his decision or his request to LePore’s attorney.
PFRS’s attorney complied by preparing the findings of fact and conclusions of law as requested and returned the “decision” with the “findings and conclusions of law” to the hearing officer. The hearing officer signed and returned the decision to PFRS’s attorney on July 25, 1997 for review by the Comptroller. On August 29, 1997, copies of the hearing officer’s determination and the Comptroller’s decision rejecting LePore’s applications were sent to LePore’s attorney.
Complaining that the hearing officer’s action (a) denied him “due process” and (2) constituted a “clear and flagrant violation of State Administrative Procedure Act (SAPA) Section 307 (2), which prohibits ex parte communications [communication between the tribunal and only one of the parties to the proceeding], LePore appealed.
PFRS attempted to persuade the Appellate Division to affirm the Comptroller’s decision because “the hearing officer did not differ significantly from the final determination ultimately rendered by [the Comptroller].”
The Appellate Division rejected PRFS’s contentions, finding that “the procedure employed not only violated SAPA Section 307 (2) but also created such an appearance of impropriety and bias to warrant an annulment of the determination” . The court returned the decision to the Comptroller for a de novo determination [new decision] based on the record presented.
The lesson here is that although the entity that appointed the hearing officer may, based on the record, accept, reject or modify the hearing officer’s findings and recommendation, the findings and recommendation must be the actual “work product” of the hearing officer.
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LePore v McCall, 262 AD2d 919
This decision illustrates the fact that a hearing officer is responsible for making findings of fact and conclusions of law necessary to support his or her determination and recommendation. These tasks may not be delegated to another, much less to one of the parties involved in the action.
Anthony LePore, a Village of Nyack police officer, was involved in an automobile accident on May 11, 1989 while at work. Although he returned to duty in June 1989, his subsequent attendance at work was “sporadic,” due to his claim of pain and limited mobility. LePore ultimately stopped working on December 15, 1989.
In August 1994, LePore filed applications with New York State Policemens’ and Firemens’ Retirement System [PFRS] seeking accidental disability retirement benefits, or, in the alternative, performance of duty disability retirement benefits. PFRS “administratively” disapproved both of his applications in April 1995 and LePore filed a timely request for an administrative hearing and redetermination.
Hearings were held in May and August 1996 before a PFRS-appointed hearing officer. LePore’s medical experts testified that the injuries that he suffered from the automobile accident are permanent. PFRS’ medical expert testified that there were “no findings to state with any degree of medical certainty that [LePore’s] accident was the competent producing cause of his current condition.”
After hearing all of the testimony presented, the hearing officer issued his decision recommending that LePore’s applications be denied. He sent the decision to PFRS with a request that PFRS’s attorney draft “the findings of fact, conclusions of law and final determination.” The hearing officer did not send a copy of his decision or his request to LePore’s attorney.
PFRS’s attorney complied by preparing the findings of fact and conclusions of law as requested and returned the “decision” with the “findings and conclusions of law” to the hearing officer. The hearing officer signed and returned the decision to PFRS’s attorney on July 25, 1997 for review by the Comptroller. On August 29, 1997, copies of the hearing officer’s determination and the Comptroller’s decision rejecting LePore’s applications were sent to LePore’s attorney.
Complaining that the hearing officer’s action (a) denied him “due process” and (2) constituted a “clear and flagrant violation of State Administrative Procedure Act (SAPA) Section 307 (2), which prohibits ex parte communications [communication between the tribunal and only one of the parties to the proceeding], LePore appealed.
PFRS attempted to persuade the Appellate Division to affirm the Comptroller’s decision because “the hearing officer did not differ significantly from the final determination ultimately rendered by [the Comptroller].”
The Appellate Division rejected PRFS’s contentions, finding that “the procedure employed not only violated SAPA Section 307 (2) but also created such an appearance of impropriety and bias to warrant an annulment of the determination” . The court returned the decision to the Comptroller for a de novo determination [new decision] based on the record presented.
The lesson here is that although the entity that appointed the hearing officer may, based on the record, accept, reject or modify the hearing officer’s findings and recommendation, the findings and recommendation must be the actual “work product” of the hearing officer.
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Doctrine of collateral estoppel may bar making of new findings of fact in an administrative hearing
Doctrine of collateral estoppel may bar making of new findings of fact in an administrative hearing
Foster v Commissioner of Labor, 262 AD2d 899
The Carthage Central School District dismissed Sharon Foster after a Section 75 disciplinary hearing officer found her guilty of misconduct in the operation of her school bus. The hearing officer found that Foster had backed up her school bus on a state highway on numerous occasions, although she knew that such a maneuver was unsafe.
Following her dismissal, Foster was denied unemployment insurance benefits on the grounds that she was terminated from her position for “disqualifying misconduct.”
After a number of procedural steps had been completed, an Unemployment Insurance Administrative Law Judge concluded that he was bound by the factual findings of the Section 75 proceeding and held that Foster’s action constituted disqualifying misconduct. The Appellate Division agreed, sustaining the Unemployment Insurance Board’s determination.
The Appellate Division also rejected Foster’s claim that she did not get a fair hearing before the Unemployment Insurance Board’s ALJ because she was not permitted to present a witness who was available to testify. The Appellate Division said that the witness’s testimony was irrelevant once the ALJ concluded that the underlying facts had been established by the final determination in the Section 75 proceeding.
According to the ruling, Foster, who was represented by counsel in the Section 75 disciplinary proceeding, had a full and fair opportunity to litigate all the factual issues concerning the charges of misconduct.
The court said that the factual findings made in during the Section 75 hearing were entitled to be given a collateral estoppel effect and thus Foster was “precluded from relitigating the factual issues” in the course of her unemployment insurance hearing.
In a parallel type of situation, if an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are filed related to that same incident of theft, there is no lawful way for an administrative disciplinary hearing officer to find the employee not guilty of stealing. This was the holding in Kelly v. Levin, 440 NY2d 424, a case that challenged the acquittal an employee in an administrative disciplinary action earlier found guilty of a criminal act involving the same allegations.
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Foster v Commissioner of Labor, 262 AD2d 899
The Carthage Central School District dismissed Sharon Foster after a Section 75 disciplinary hearing officer found her guilty of misconduct in the operation of her school bus. The hearing officer found that Foster had backed up her school bus on a state highway on numerous occasions, although she knew that such a maneuver was unsafe.
Following her dismissal, Foster was denied unemployment insurance benefits on the grounds that she was terminated from her position for “disqualifying misconduct.”
After a number of procedural steps had been completed, an Unemployment Insurance Administrative Law Judge concluded that he was bound by the factual findings of the Section 75 proceeding and held that Foster’s action constituted disqualifying misconduct. The Appellate Division agreed, sustaining the Unemployment Insurance Board’s determination.
The Appellate Division also rejected Foster’s claim that she did not get a fair hearing before the Unemployment Insurance Board’s ALJ because she was not permitted to present a witness who was available to testify. The Appellate Division said that the witness’s testimony was irrelevant once the ALJ concluded that the underlying facts had been established by the final determination in the Section 75 proceeding.
According to the ruling, Foster, who was represented by counsel in the Section 75 disciplinary proceeding, had a full and fair opportunity to litigate all the factual issues concerning the charges of misconduct.
The court said that the factual findings made in during the Section 75 hearing were entitled to be given a collateral estoppel effect and thus Foster was “precluded from relitigating the factual issues” in the course of her unemployment insurance hearing.
In a parallel type of situation, if an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are filed related to that same incident of theft, there is no lawful way for an administrative disciplinary hearing officer to find the employee not guilty of stealing. This was the holding in Kelly v. Levin, 440 NY2d 424, a case that challenged the acquittal an employee in an administrative disciplinary action earlier found guilty of a criminal act involving the same allegations.
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October 15, 2010
Determining if a demand to submit a grievance to arbitration is subject to the “two-prong test"
Determining if a demand to submit a grievance to arbitration is subject to the “two-prong test"
Matter of Board of Educ. of Deer Park Union Free School Dist. v Deer Park Teachers' Assn., 2010 NY Slip Op 07338, Decided on October 12, 2010, Appellate Division, Second Department
Regina Moraitis was appointed to the position of Computer Teacher and subsequently she was awarded tenure in that area. In January 2009 the petitioner, Deer Park Union Free School District abolished Moraitis's position and terminated her employment.
The Deer Park Teachers' Association filed a grievance on behalf of Regina Moraitis pursuant to a collective bargaining agreement between the Deer Park School Union Free District and the Teachers' Association and ultimately demanded that the grievance be submitted to arbitration. The demand described the nature of the grievance as one for contract interpretation, and asserted that Deer Park had violated the collective bargaining agreement by abolishing Moraitis's teaching position and not offering her an available position.
Deer Park, in the course of the litigation, said that its appointment of Moraitis to the position of Computer Teacher was a mistake it did not discover until years after the appointment and she should have been appointed as a Computer Technology Staff Developer and that the Developer position was not in the collective bargaining unit represented by the Association.
Deer Park commenced an Article 75 proceeding seeking to permanently stay arbitration on the ground that Moraitis did not hold a position within the bargaining unit represented by the Teachers' Association. The Supreme Court denied Deer Park’s petition and dismissed the proceeding. The Appellate Division affirmed the lower court’s ruling.
The Appellate Division said that to determine whether a dispute between a public sector employer and employee is arbitrable the courts apply a “two-prong test” described by the Court of Appeals in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.), 42 NY2d 509.
The first prong of the test: is any statutory, constitutional, or public policy prohibition against arbitrating the grievance? If there is no prohibition against arbitrating, the second prong of the test is triggered and the court must examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute.
As Deer Park did not contend that arbitration of the subject matter of the dispute was prohibited by law or public policy, the only issue to be resolved is whether the parties agreed to arbitrate the particular dispute.
In such a situation, said the Appellate Division, if the arbitration clause is broad enough to encompass the subject matter of a dispute, "[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator," citing Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak v Barni, 49 NY2d 311.
As the Court of Appeals ruled in Matter of Board of Educ. of Watertown City School Dist. v Watertown Educ. Assn., 74 NY2d 912, a stay of arbitration is inappropriate where "the parties' agreement to arbitrate the dispute is clear and unequivocal but there is some ambiguity as to the coverage of the applicable substantive provision of the contract."
Pointing out that the “Recognition Clause” in the collective bargaining agreement “explicitly excludes certain employees,” the court noted that the list of excluded employees did not include either the position of Computer Technology Staff Developer or Computer Teacher.
As Article XIII, Section 1(a) of the collective bargaining agreement defines a grievance terminating in binding arbitration as "a claim based upon interpretation, meaning or application of any provision of this contract" with only claim excluded from Article XIII, Section 1(a) is a claim regarding the denial of tenure, the Appellate Division concluded that collective bargaining agreement clearly provides for arbitration of a dispute involving the proper interpretation of its provisions and, on its face, “the subject matter of the dispute as set forth in the [Association’s] demand for arbitration is arbitrable.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07338.htm
NYPPL
Matter of Board of Educ. of Deer Park Union Free School Dist. v Deer Park Teachers' Assn., 2010 NY Slip Op 07338, Decided on October 12, 2010, Appellate Division, Second Department
Regina Moraitis was appointed to the position of Computer Teacher and subsequently she was awarded tenure in that area. In January 2009 the petitioner, Deer Park Union Free School District abolished Moraitis's position and terminated her employment.
The Deer Park Teachers' Association filed a grievance on behalf of Regina Moraitis pursuant to a collective bargaining agreement between the Deer Park School Union Free District and the Teachers' Association and ultimately demanded that the grievance be submitted to arbitration. The demand described the nature of the grievance as one for contract interpretation, and asserted that Deer Park had violated the collective bargaining agreement by abolishing Moraitis's teaching position and not offering her an available position.
Deer Park, in the course of the litigation, said that its appointment of Moraitis to the position of Computer Teacher was a mistake it did not discover until years after the appointment and she should have been appointed as a Computer Technology Staff Developer and that the Developer position was not in the collective bargaining unit represented by the Association.
Deer Park commenced an Article 75 proceeding seeking to permanently stay arbitration on the ground that Moraitis did not hold a position within the bargaining unit represented by the Teachers' Association. The Supreme Court denied Deer Park’s petition and dismissed the proceeding. The Appellate Division affirmed the lower court’s ruling.
The Appellate Division said that to determine whether a dispute between a public sector employer and employee is arbitrable the courts apply a “two-prong test” described by the Court of Appeals in Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. (United Liverpool Faculty Assn.), 42 NY2d 509.
The first prong of the test: is any statutory, constitutional, or public policy prohibition against arbitrating the grievance? If there is no prohibition against arbitrating, the second prong of the test is triggered and the court must examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute.
As Deer Park did not contend that arbitration of the subject matter of the dispute was prohibited by law or public policy, the only issue to be resolved is whether the parties agreed to arbitrate the particular dispute.
In such a situation, said the Appellate Division, if the arbitration clause is broad enough to encompass the subject matter of a dispute, "[t]he question of the scope of the substantive provisions of the contract is itself a matter of contract interpretation and application, and hence it must be deemed a matter for resolution by the arbitrator," citing Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak v Barni, 49 NY2d 311.
As the Court of Appeals ruled in Matter of Board of Educ. of Watertown City School Dist. v Watertown Educ. Assn., 74 NY2d 912, a stay of arbitration is inappropriate where "the parties' agreement to arbitrate the dispute is clear and unequivocal but there is some ambiguity as to the coverage of the applicable substantive provision of the contract."
Pointing out that the “Recognition Clause” in the collective bargaining agreement “explicitly excludes certain employees,” the court noted that the list of excluded employees did not include either the position of Computer Technology Staff Developer or Computer Teacher.
As Article XIII, Section 1(a) of the collective bargaining agreement defines a grievance terminating in binding arbitration as "a claim based upon interpretation, meaning or application of any provision of this contract" with only claim excluded from Article XIII, Section 1(a) is a claim regarding the denial of tenure, the Appellate Division concluded that collective bargaining agreement clearly provides for arbitration of a dispute involving the proper interpretation of its provisions and, on its face, “the subject matter of the dispute as set forth in the [Association’s] demand for arbitration is arbitrable.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07338.htm
NYPPL
Liability for line of duty injuries
Liability for line of duty injuries
Gonzalez v Iocovello, Appellate Division, 249 AD2d 143, Ct. of Appeals, 93 NY2d 539
The so-called “firefighter’s rule” refers to the strict limits that the courts have placed on the ability of police officers and firefighters to sue co-workers or others for injuries suffered in the line of duty, even if negligence was involved. One notable decision is Santangelo v New York State, 71 NY2d 393, in which the Court of Appeals -- the state’s highest court -- said the firefighter’s rule barred a police officer from suing a co-worker for injuries the officer suffered in the line of duty.
The legislature responded to the Santangelo ruling by enacting Section 205-e of the General Municipal Law in 1989 to nullify it. Essentially, Section 205-e allows a police officer to sue a co-worker and, or, the employer in cases where the defendant’s violation of a law, rule or regulation caused the police officer’s or firefighter’s line of duty injury.*
The ability of police officers to sue, and win damages, when the violation of a law by a fellow officer caused the injury was confirmed by the Court of Appeals in the Gonzalez decision. The case involved New York City police officer Maria C. Gonzalez, who suffered a permanent line of duty injury when the patrol car in which she was a passenger drove through a red light while responding to a “burglary in progress” call and was struck by another vehicle.
Gonzalez sued the city, claiming that she had been injured in the line of duty because her partner violated the Vehicle and Traffic Law. The city, on the other hand, contended that Gonzalez could not sue it on the theory that she suffered the injury as a result of her partner’s violation of a law. But the Court of Appeals disagreed and let her $3,300,000 jury award stand. Finding that there was nothing in Section 205-e to prevent Gonzalez from suing, the court commented that if the legislature had intended to bar such lawsuits, it “could have easily” done so in view of the several amendments to Section 205-e it had enacted.
The decision states that a violation of the Vehicle and Traffic Law is a valid basis for a claim under Section 205-e. The court pointed out that although Section 1104(e) of the V&T Law “allows emergency vehicles to run stoplights and violate other traffic laws in emergency situations,” the emergency vehicle driver is liable for his or her “reckless disregard for the safety of others.’”
In another case decided at the same time, Cosgriff v City of New York, 93 NY2d 539, the Court of Appeals ruled that the city’s failure to keep its sidewalks in “safe repair” violated the City’s Charter and its Administrative Code and thus it could be sued pursuant to Section 205-e by a police officer who tripped on a defective sidewalk while chasing a drug dealer.
* The General Obligations Law allows lawuits by police officers and firefighters injured by the negligence or intentional conduct of any person, except an employer or co-employee (Chapter 703, Laws of 1996). The Court of Appeals said that “[t]he inclusion of the explicit exception in General Obligations Law Section 11-106 magnifies its absence in General Municipal Law Section 205-e,” especially since Section 205-e was amended by the same Chapter 703.
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Gonzalez v Iocovello, Appellate Division, 249 AD2d 143, Ct. of Appeals, 93 NY2d 539
The so-called “firefighter’s rule” refers to the strict limits that the courts have placed on the ability of police officers and firefighters to sue co-workers or others for injuries suffered in the line of duty, even if negligence was involved. One notable decision is Santangelo v New York State, 71 NY2d 393, in which the Court of Appeals -- the state’s highest court -- said the firefighter’s rule barred a police officer from suing a co-worker for injuries the officer suffered in the line of duty.
The legislature responded to the Santangelo ruling by enacting Section 205-e of the General Municipal Law in 1989 to nullify it. Essentially, Section 205-e allows a police officer to sue a co-worker and, or, the employer in cases where the defendant’s violation of a law, rule or regulation caused the police officer’s or firefighter’s line of duty injury.*
The ability of police officers to sue, and win damages, when the violation of a law by a fellow officer caused the injury was confirmed by the Court of Appeals in the Gonzalez decision. The case involved New York City police officer Maria C. Gonzalez, who suffered a permanent line of duty injury when the patrol car in which she was a passenger drove through a red light while responding to a “burglary in progress” call and was struck by another vehicle.
Gonzalez sued the city, claiming that she had been injured in the line of duty because her partner violated the Vehicle and Traffic Law. The city, on the other hand, contended that Gonzalez could not sue it on the theory that she suffered the injury as a result of her partner’s violation of a law. But the Court of Appeals disagreed and let her $3,300,000 jury award stand. Finding that there was nothing in Section 205-e to prevent Gonzalez from suing, the court commented that if the legislature had intended to bar such lawsuits, it “could have easily” done so in view of the several amendments to Section 205-e it had enacted.
The decision states that a violation of the Vehicle and Traffic Law is a valid basis for a claim under Section 205-e. The court pointed out that although Section 1104(e) of the V&T Law “allows emergency vehicles to run stoplights and violate other traffic laws in emergency situations,” the emergency vehicle driver is liable for his or her “reckless disregard for the safety of others.’”
In another case decided at the same time, Cosgriff v City of New York, 93 NY2d 539, the Court of Appeals ruled that the city’s failure to keep its sidewalks in “safe repair” violated the City’s Charter and its Administrative Code and thus it could be sued pursuant to Section 205-e by a police officer who tripped on a defective sidewalk while chasing a drug dealer.
* The General Obligations Law allows lawuits by police officers and firefighters injured by the negligence or intentional conduct of any person, except an employer or co-employee (Chapter 703, Laws of 1996). The Court of Appeals said that “[t]he inclusion of the explicit exception in General Obligations Law Section 11-106 magnifies its absence in General Municipal Law Section 205-e,” especially since Section 205-e was amended by the same Chapter 703.
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Rating the oral test performance by applicants in a civil service examination to be based on objective standards
Rating the oral test performance by applicants in a civil service examination to be based on objective standards
Merlino v Schneider, Ct. of Appeals, 93 NY2d 477
Oral tests are sometimes included as part of the examination for appointment and promotion in the public service. The Merlino case sets out the basic standard used by the courts in reviewing appeals challenging the candidate’s oral test score.
Carmen Merlino challenged her oral test score for an examination for language proficiency. The Court of Appeals held that Merlin’s test results were based on “objective standards,” commenting that the abilities for which candidates would be tested and the substance, form and method of the oral exam were all clearly delineated. Essentially, courts require oral tests to provide a reviewable record and an objective rating scheme to pass judicial scrutiny.
The court said that in this instance:
The oral language exam tested grammar, pronunciation, and vocabulary in the context of a 15-minute extemporaneous conversation. These qualities cannot be measured solely by objective criteria. Although some subjective elements, of necessity, entered into the evaluation, the fact that a subjective element may have been involved to some degree in petitioner's rating is not sufficient in and of itself to invalidate the Department's ultimate determination: "The mandate of the Constitution for the ascertainment of merit and fitness, so far as practicable, by competitive examination, may not be transformed into an interdict against the examinations which are best adapted for the demonstration of fitness. It would be impossible to formulate a standard by which such qualities may be defined or measured with entire objectivity.”
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Merlino v Schneider, Ct. of Appeals, 93 NY2d 477
Oral tests are sometimes included as part of the examination for appointment and promotion in the public service. The Merlino case sets out the basic standard used by the courts in reviewing appeals challenging the candidate’s oral test score.
Carmen Merlino challenged her oral test score for an examination for language proficiency. The Court of Appeals held that Merlin’s test results were based on “objective standards,” commenting that the abilities for which candidates would be tested and the substance, form and method of the oral exam were all clearly delineated. Essentially, courts require oral tests to provide a reviewable record and an objective rating scheme to pass judicial scrutiny.
The court said that in this instance:
The oral language exam tested grammar, pronunciation, and vocabulary in the context of a 15-minute extemporaneous conversation. These qualities cannot be measured solely by objective criteria. Although some subjective elements, of necessity, entered into the evaluation, the fact that a subjective element may have been involved to some degree in petitioner's rating is not sufficient in and of itself to invalidate the Department's ultimate determination: "The mandate of the Constitution for the ascertainment of merit and fitness, so far as practicable, by competitive examination, may not be transformed into an interdict against the examinations which are best adapted for the demonstration of fitness. It would be impossible to formulate a standard by which such qualities may be defined or measured with entire objectivity.”
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Overtime and the Fair Labor Standards Act
Overtime and the Fair Labor Standards Act
Alden v Maine, US Supreme Court, 527 U.S. 706
The question of the enforceability of the Fair Labor Standards Act’s [FLSA] mandates concerning overtime with respect to employees in the public service, especially those engaged in law enforcement and firefighting, has been an issue for a number of years.
In Alden v Maine the U.S. Supreme Court held that federal courts do not have jurisdiction to adjudicate alleged FLSA violations insofar as states are concerned, nor does a state court have jurisdiction to consider a state’s alleged FLSA violations without the consent of the state. Why? Because the 11th Amendment, which provides states with sovereign immunity, bars such lawsuits in federal court.
In the words of the High Court, “Congress lacks power under Article I to abrogate the States’ sovereign immunity from suits commenced or prosecuted in the federal courts.” Further, the court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts.” This means that state workers are unable to sue their employer concerning alleged FLSA violations unless it has consented to such suits.
However, the “overtime provision” set out in Section 134 of New York’s Civil Service Law preceded Congress’ attempt to make the states subject to FLSA. Accordingly, it could be argued that New York State, as an employer, did not “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court based on the decision in Mueller v Thompson.
If a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, it loses its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA [Mueller v Thompson, 858 F.Supp. 885].
In Mueller, where Wisconsin was the employer, the court said that there is no waiver of a state’s Eleventh Amendment immunity “unless the state has made its intention to waive its rights under the amendment clear.” Wisconsin had incorporated FLSA into state law in 1971. In 1974 Congress amended the FLSA, making it applicable to the states and their political subdivisions. The 7th Circuit concluded that “on this legislative history” Wisconsin had not waived its 11th Amendment immunity because it adopted a state FLSA prior to 1974. Does this mean that payment for overtime is no longer required to be paid to employees of New York State? No, for a number of reasons.
Section 134 of the Civil Service Law provides for the payment of overtime at “time and one-half” to eligible state workers. Alleged violations of Section 134 - a state law - may be tested in state court. In addition, collective bargaining agreements negotiated pursuant to the Taylor Law may require payment for overtime. Violation of such types of provisions are typically subject to contract grievance arbitration procedures.
What about suing a political subdivision of a state for alleged violations of FLSA in federal court? According to the Alden ruling there is an “important limit” to the principle of sovereign immunity barring suits against States -- the immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity that is not an arm of the State.
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Alden v Maine, US Supreme Court, 527 U.S. 706
The question of the enforceability of the Fair Labor Standards Act’s [FLSA] mandates concerning overtime with respect to employees in the public service, especially those engaged in law enforcement and firefighting, has been an issue for a number of years.
In Alden v Maine the U.S. Supreme Court held that federal courts do not have jurisdiction to adjudicate alleged FLSA violations insofar as states are concerned, nor does a state court have jurisdiction to consider a state’s alleged FLSA violations without the consent of the state. Why? Because the 11th Amendment, which provides states with sovereign immunity, bars such lawsuits in federal court.
In the words of the High Court, “Congress lacks power under Article I to abrogate the States’ sovereign immunity from suits commenced or prosecuted in the federal courts.” Further, the court held that “the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting states to private suits for damages in state courts.” This means that state workers are unable to sue their employer concerning alleged FLSA violations unless it has consented to such suits.
However, the “overtime provision” set out in Section 134 of New York’s Civil Service Law preceded Congress’ attempt to make the states subject to FLSA. Accordingly, it could be argued that New York State, as an employer, did not “deliberately” waived its Eleventh Amendment immunity from suit by state workers for alleged violations of the FLSA in federal court based on the decision in Mueller v Thompson.
If a state adopts the FLSA as state law and allows state employees to sue it for alleged violations of the state’s law, it loses its Eleventh Amendment immunity from suit by its employees brought in the federal courts for alleged violations of the federal FLSA [Mueller v Thompson, 858 F.Supp. 885].
In Mueller, where Wisconsin was the employer, the court said that there is no waiver of a state’s Eleventh Amendment immunity “unless the state has made its intention to waive its rights under the amendment clear.” Wisconsin had incorporated FLSA into state law in 1971. In 1974 Congress amended the FLSA, making it applicable to the states and their political subdivisions. The 7th Circuit concluded that “on this legislative history” Wisconsin had not waived its 11th Amendment immunity because it adopted a state FLSA prior to 1974. Does this mean that payment for overtime is no longer required to be paid to employees of New York State? No, for a number of reasons.
Section 134 of the Civil Service Law provides for the payment of overtime at “time and one-half” to eligible state workers. Alleged violations of Section 134 - a state law - may be tested in state court. In addition, collective bargaining agreements negotiated pursuant to the Taylor Law may require payment for overtime. Violation of such types of provisions are typically subject to contract grievance arbitration procedures.
What about suing a political subdivision of a state for alleged violations of FLSA in federal court? According to the Alden ruling there is an “important limit” to the principle of sovereign immunity barring suits against States -- the immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity that is not an arm of the State.
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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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