Statute of limitations not stayed when pursuing another remedy

Statute of limitations not stayed when pursuing another remedy
Levine v Board of Education, 272 AD2d 328

Sometimes an individual will file a grievance in accordance with the grievance procedure set out in a collective bargaining agreement rather than immediately initiate a lawsuit on the assumption that he or she can file the lawsuit later.

The Levine case is another example of the difficulties an individual may encounter if he or she does not take the steps necessary to protect his or her right to litigate the issue.

The New York City Board of Education terminated Martin Levine from his position as laboratory specialist. When he later attempted to challenge his dismissal by filing a petition pursuant to Article 78 of the Civil Practice Law and Rules, he found that he was time barred.

Levine’s problem: he had filed a contract grievance disputing his termination under the assumption that filing a grievance would stop the running of the Statute of Limitations for the purposes of his filing an Article 78 petition until the conclusion of the grievance procedure and the arbitrator issued a final determination.

Levine’s assumption proved to be incorrect, as the Appellate Division quickly pointed out.

Affirming the dismissal of his petition by State Supreme Court William J. Garry as untimely, the Appellate Division set out the following factors as basic to individual litigating an issue initially submitted for adjudication under a grievance procedure:

1. An Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding.

2. Where, as in Levin’s case, a review of an administrative decision is sought, the determination, for the purposes of bringing a timely Article 78, becomes final and binding on the date that the termination of individual’s employment becomes effective.

3. The invocation of an administrative grievance procedure in accordance with a Taylor Law agreement does not stop the running of the Statute of Limitations.

Levine could probably have avoided this problem by filing an Article 78 petition within the four-month Statute of Limitations period even though a final determination on his grievance had not yet been made.

Standing to appeal an arbitrator's determination

Standing to appeal an arbitrator's determination
Delgado v NYC Board of Education, 272 AD2d 207, Leave to appeal denied, 95 NY2d 768

The basic issue in the Delgado case concerns the right of an individual to bring a lawsuit involving the same issue[s] considered by an arbitrator in resolving a grievance filed in accordance with procedures negotiated under the Taylor Law.

John Delgado, an employee of the Board of Education Office of School Food and Nutritional Services, was terminated from his position. His grievance protesting his dismissal was denied by an arbitrator.

In an effort to vacate or modify an arbitration decision rejecting his grievance challenging his termination of his employment Delgado filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate the arbitrator’s award.

The Board of Education opposed Delgado’s motion. The Appellate Division affirmed a lower court ruling summarily dismissing Delgado’s petition.

The court’s rationale: Delgado lacks standing to bring the instant petition since he was represented by the union at the arbitration.

Significantly, the Appellate Division said that although the issue of standing was first raised by the Board of Education in its appeal, it presented a question of law -- did the court have jurisdiction to adjudicate Delgado’s petition -- that could not have been avoided had it been raised before the lower court. Accordingly, it was proper to raise, and the court to consider, the question of jurisdiction at the appellate level.

In other words, if Delgado did not have standing to bring the Article 75 action, the courts may not consider his petition in the first instance and that issue -- jurisdiction -- may be raised by a party at any stage of the proceeding.

Clearly, had the union filed an Article 75 petition challenging the arbitrator’s determination, it would have found to have standing.

It is generally held that unless the Taylor Law agreement includes an uncommon provision -- allowing an employee himself or herself to demand arbitration of his or her grievance independent of the union -- the right to demand that a grievance be submitted to arbitration is vested exclusively in the employee organization.*

Accordingly, as a general rule, only the union has to right to challenge an adverse determination by the arbitrator by filing an Article 75 petition seeking to vacate or modify the award.

* Such a limitation is tempered, however, and the individual is typically permitted go forward with the arbitration in the event he or she can demonstrate that the union failed in “its duty of fair representation.”

The timeliness of the filing of an appointee’s Oath of Office critical to his or her continuation in the position

The timeliness of the filing of an appointee’s Oath of Office critical to his or her continuation in the position
Matter of Scro v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2011 NY Slip Op 30182(U), Sup Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports]

Anthony Scro filed an Article 78 proceeding seeking to annul the decision of Jordan-Elbridge Central School District Board of Education terminating his employment as “Treasurer” of the School District as a result of his alleged failure to file his Oath of Office in timely fashion.*

The Board moved to dismiss Scro’s petition, contending that its action was consistent with law in that Scro had failed to file his Oath of Office within the time period permitted by Public Officers Law §30.1.h and thus he had been removed from his position “ by operation of law.”

Public Officers Law §30.1.h, in pertinent part, provides that a public office “shall be vacant upon” … the appointee’s “refusal or neglect to file his official oath or undertaking, if one is required … within thirty days after notice of his appointment, or within thirty days after the commencement of such term; or to file a renewal undertaking within the time required by law, or if no time be so specified, within thirty days after notice to him in pursuance of law, that such renewal undertaking is required.”

According to the decision, Scro was initially appointed to the statutory office of School District Treasurer, effective October 31, 2007. He was thereafter reappointed at the beginning of the following three fiscal years at the School Board’s annual reorganization meetings in July, each such reappointment being to a new twelve month term as Treasurer.

Scro was last appointed to that position by the Board to serve a one-year term effective July 1, 2010 and had signed his Oath of Office on August 9, 2010.

The Board alleged that Scro’s term began on July 1, 2010 and the Board had reappointed him on July 7, 2010. Accordingly, said the Board, the latest possible date for Scro to file his Oath of Office within the time period permitted by §30.1.h was Friday, August 6, 2010.

Observing that “The requirement for the taking and filing of an Oath of Office is not an obscure requirement, but instead is fundamental and of significant import …” Judge Greewood said that the requirement is not waivable and is strictly construed and that had Scro failed to file his Oath of Office within the requisite thirty days as required by §30.1.h, the appointment would be vitiated and the office would be deemed vacant.

In this instance, said the court, the timeliness of Scro’s execution of his Oath of Office is critical. Was it filed “within thirty days after notice of his appointment, or within thirty days after the commencement of such term...”, as required by statute?

Judge Greenwood said that “There is no question that [Scro’s] term commenced on July 1, 2010 and the appointment did not take place until the School Board’s reorganizational meeting of July 7, 2010” nor was there any question that Scro had not executed his Oath of Office within thirty days of either of those dates.

However, observed Judge Greenwood, §2121(5) of the Education Law provides that it is the duty of the school district clerk to “give notice immediately to every person elected or appointed to the office of his election or appointment; and also to report to the town clerk of the town in which the school house of his district is situated, the names and post-office addresses of such officers, under a penalty of five dollars for neglect in each instance.”

As the Legislature specifically required notice to an officer and not simply action of the Board.
Judge Greenwood said that Jeanette Brock, the School District Clerk, was obligated to discharge her statutory duty under the Education Law "by providing notice to each officer of his [or her] appointment and this constituted a condition precedent to the officers’ execution of the Oath."

Finding that Brock had advised all officers required to sign the Oath of Office form “within three to four business days of the reorganization meeting”, and viewed in the light most favorable to the Board, Brock provided the Scro with notice on either July 12 or July 13, and that Scro had signed his Oath of Office on August 9, Judge Greenwood ruled that Scro had timely executed his Oath of Office and thus he may not be removed during the term of his employment except through petition to the Commissioner of Education.

Holding that the Board’s action in terminating Scro’s employment violated his statutory rights, Judge Greenwood declared the Board’s action “null and void and ultra vires”** and ordered Scro’s immediately reinstatement to his office as District Treasurer “with all back pay and associated benefits he would have been entitled to had the improper termination not occurred.”

* N.B. The failure to file a timely oath cannot be cured by subsequently filing the required oath [Opinion of the Attorney General, 86-41, Informal].

** Ultra vires -- beyond the power of the body so acting.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/pdfs/2011/2011_30182.pdf

Accidental disability retirement - determining proximate cause

Accidental disability retirement - determining proximate cause
Sepanara v NYS Employees’ Retirement System, 272 AD2d 830

City of Johnstown police officer Michael C. Sepanara, claiming that he was permanently disabled as a result of a line-of-duty injury, filled applications for accidental and performance of duty disability retirement benefits.

According to the facts set out in the Appellate Division’s decision, Sepanara was on duty when he stumbled and fell on a broken piece of asphalt in an eroding parking lot, allegedly sustaining neck, wrist and back injuries. Sepanara testified at the hearing held by the Retirement System and he and the System elected to rely upon medical records presented at the hearing.

The Retirement System conceded that Sepanara was disabled -- but concluded that neither his slipping or falling in the parking lot was the cause of his disability. Essentially the System decided that Sepanara’s disability was the sole result of a preexisting degenerative back condition. The Comptroller agreed and denied Sepanara’s applications for disability retirement benefits. Sepanara sued, seeking to overturn the Comptroller’s determination.

The Appellate Division affirmed the Comptroller’s ruling, holding that Sepanara failed to sustain his burden of proving that his permanent disability was the natural and proximate result of the April 1995 accident.

The court pointed out that the relevant medical records indicated that Sepanara began experiencing neck and shoulder pain in the 1980s and was diagnosed with degenerative cervical abnormalities and arthritis in his neck as early as 1988.

In addition, the System’s medical experts, after examining Sepanara and reviewing his medical history, concluded that his chronic degenerative disc disease and arthritis of the cervical spine were the sole cause of [his] disability and that these conditions were completely unrelated to the April 1995 accident nor were they aggravated by that accident.

While there was medical evidence that could support a finding that Sepanara’s April 1995 accident was the proximate cause of his disability, it was within the Comptroller’s authority to evaluate the conflicting medical opinions and to resolve the dispute by according greater weight to the considered opinions offered by [the System’s] experts than to those offered by the other experts.

Using the word “should” in a policy memorandum’s means it is not mandatory

Using the word “should” in a policy memorandum’s means it is not mandatory
Port Wash. Teachers' Ass'n v. Board of Educ. of the Port Wash. Union Free Sch. Dist., No. 06-0708-CV 67, (USCA, 2d Cir.)

The superintendent of the Port Washington Union Free School District, Dr. Geoffrey N. Gordon, issued a policy memorandum advising members of the school district’s staff of the actions they should take in the event they learn that a student is pregnant.

The teachers' union sued, but a federal district court judge, Judge Thomas C. Platt, dismissed the petition. Judge Platt held that the action could not be maintained because there was (1) “a lack of standing,” (2) the claims were not ripe, and (3) the complaint failed to state a viable claim.

The Circuit Court of Appeals affirmed Judge Platt’s ruling.

Dr. Gordon’s “Policy Memorandum” setting out the District’s policy stated that that a student's communications to one of them that a student is pregnant “is not a communication protected by a legal privilege, but rather may trigger legal reporting obligations.”

The policy indicated that a staff member who becomes aware of a student pregnancy should report it immediately to the school social worker. The policy also addressed the action that staff members should take in cases where statutory rape or incest was suspected. It also stated that the parents of the student should be advised of the pregnancy by school personnel if the student refused to do so.

The court said that the union offer little more than conclusory statements to support its assertion that social workers risk civil liability and their professional license by complying with the Policy Memorandum or that staff members were in jeopardy of disciplinary action if they did not comply with the policy.

In affirming the dismissal of the complaint by the district court judge, the Circuit Court said that “Because the plaintiffs have not established that civil liability or professional discipline is actual or imminent, the theoretical possibility that either might occur in the future does not amount to injury in fact.”

In addition, the court noted that the Policy “repeatedly uses the word ‘should’ in setting forth the notification procedures, thus easily supporting the understanding that adherence to them was not mandatory, by law or otherwise.”

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/notification-of-pregnancy-to-parents-of.html

Where the statute provides alternate appeal procedures, the election of one such procedure serves to preclude seeking redress pursuant to the other

Where the statute provides alternate appeal procedures, the election of one such procedure serves to preclude seeking redress pursuant to the other
Matter of Uddin v NYC/Human Resources Admin., 2011 NY Slip Op 00695, Appellate Division, Second Department

§76 of the Civil Service Law provides that an aggrieved employee may appeal a §75 administrative disciplinary determination by either:

1. Filing an application to the state or municipal commission having jurisdiction within twenty days after service of the written notice of the disciplinary determination; or

2. By filing a petition in accordance with the provisions of Article 78 of the Civil Practice Law and Rules [CPLR].

New York City Human Resources Administration sustained the disciplinary determination and the recommended penalty issued by an administrative law judge that found Jamal Uddin guilty of misconduct.

Uddin then filed a petition pursuant to CPLR Article 78 with Supreme Court, Kings County. The court, however, granted Human Resources’ motion to dismiss the petition, and dismissed the proceeding.

The Appellate Division sustained the lower court’s decision, noting that Uddin sought judicial review of a §75 disciplinary determination after seeking a review pursuant to Civil Service Law §76 before the New York City Civil Service Commission [NYCCSC], said he was barred from commencing the underlying CPLR Article 78 proceeding.*

The court then commented that “To the extent that this proceeding may also be considered a challenge to the determination of the NYCCSC,” Uddin failed to demonstrate that the NYCCSC's determination falls within a recognized exception to the statutory prohibition on judicial review of such by virtue of its being unconstitutional, violative of state law, or in excess of the NYCCSC's authority.

Accordingly, the Appellate Division ruled that judicial review of the NYCCSC's determination was precluded.

* §76.3, in pertinent part, provides that “The decision of such civil service commission shall be final and conclusive, and not subject to further review in any court.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00695.htm

Finding different employees guilty of the same misconduct does not require the appointing authority's imposing the same penalty on the individuals

Finding different employees guilty of the same misconduct does not require the appointing authority's imposing the same penalty on the individuals
Meagher v Safir, 272 AD2d 114

One of the issues in the Justin Meagher’s appeal from the disciplinary penalty imposed upon him by the New York City Commissioner of Police was that his punishment was the forfeiture of ten days of vacation while the penalty imposed on another officer involved in the same event was the loss of five days of vacation.*

Both officers, who were partners, were found guilty of using excessive force in making a particular arrest.

The Appellate Division held that the record provides no basis for imposing different penalties on the two police officers involved in this incident. Rather, said the court, the record indicated that appointing authority’s designee, the First Deputy Commissioner, improperly cited [Meagher’s] election to pursue an administrative trial as justification for the higher penalty.

The Appellate Division, concluding that the penalty imposed on Meagher was disproportionate to the offense. Rather than remand the case to the department for the imposition of a new penalty, the Appellate Division elected to exercise its discretion and changed the penalty to be imposed on Meagher to the loss of five days vacation.**

* In addition, the record indicates that the department discontinued its scholarship support for Meagher’s law school tuition as a result of his being found guilty of misconduct.

** Apparently, however, the court did not reinstate the Department’s scholarship support of Meagher’s law school tuition.