The arbitrator decides if a party in prior arbitration decision may claim res judicata or collateral estoppel in a subsequent arbitration
Town of Newburgh v CSEA, 272 AD2d 405
Although an arbitrator sustained the Newburgh’s dismissal of an employee who was found guilty of testing positive for marijuana, this did not end the matter.
The employee’s union, the Civil Service Employee’s Association [CSEA], filed a second grievance alleging that the Town had violated the collective bargaining agreement because it had suspended the individual for more than 30 days without pay prior to the arbitrator’s determination. CSEA demanded that the second grievance be submitted to arbitration.
In effect, CSEA argued that because the final resolution of the charges occurred upon the issuance of the disciplinary arbitration award, the employee in question was wrongly suspended without pay for a period of more than 30 days prior to the issuance of the award.
The Town, contending that considering a second grievance necessarily presents a risk of inconsistent awards, filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking an order staying the arbitration. State Supreme Court Peter C. Patsalos to grant the Town’s petition to stay the arbitration; the Appellate Division, Second Department, reversed.
The Appellate Division pointed out that the arbitrator in the disciplinary action apparently did not directly address the question of whether, pursuant to the parties’ collective bargaining agreement, the employee could be suspended without pay for more than 30 days pending disposition of the disciplinary charges against him.
The Appellate Division rejected the Town’s argument that arbitration of the second grievance necessarily presents a risk of inconsistent awards.
Accordingly, the court said that under these circumstances the correct rule to apply is that which holds that it is for a successive arbitrator to decide any res judicata [an already decided issue] or collateral estoppel effect is to be given to a prior arbitration award.
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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.
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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
February 24, 2011
February 23, 2011
Police officer’s application for GML §207-c benefits denied for failure to file the application as required by the collective bargaining agreement
Police officer’s application for GML §207-c benefits denied for failure to file the application as required by the collective bargaining agreement
Matter of Laird v Village of Pelham Manor, 2011 NY Slip Op 01278, Appellate Division, Second Department
The PBA and the Village of Pelham Manor entered into a collective bargaining agreement that included a procedure to be followied by an police officers seeking disability and other benefits available to him or to her pursuant to General Municipal Law §207-c.
The CBA’s procedure provided for the filing of an application for benefits, a determination to be made on the application submitted, and the review of the determination if the applicant was unhappy with the decision including appealing the denial of such benefits in the event the police officer’s application for §207-c benefits was rejected because the “applicant failed to comply with the agreed-upon procedures.”
The Village denied the application for §207-c benefits filed by police officer Christopher Laird after determining that he did not file his application for such benefits within the time limit permitted for filing such claims set out in the CBA.
Laird appealed the determination and he was given an opportunity to demonstrate that he had credible reasons for failing to file the application within the agreed-upon period. His appeal was denied and ultimately the Village Board of Trustees affirmed the initial finding that Laird’s application seeking §207-c benefits was untimely.
The Appellate Division sustained the Village Board’s decision, ruling that the Board’s determination was “rationally based.”
The court said that the appropriate application forms were available to Laird upon request and found that other police officers following the procedure set out in the collective bargaining agreement had been granted “disability status” after filing a timely application for §207-c benefits.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01278.htm
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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic handbook.
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Matter of Laird v Village of Pelham Manor, 2011 NY Slip Op 01278, Appellate Division, Second Department
The PBA and the Village of Pelham Manor entered into a collective bargaining agreement that included a procedure to be followied by an police officers seeking disability and other benefits available to him or to her pursuant to General Municipal Law §207-c.
The CBA’s procedure provided for the filing of an application for benefits, a determination to be made on the application submitted, and the review of the determination if the applicant was unhappy with the decision including appealing the denial of such benefits in the event the police officer’s application for §207-c benefits was rejected because the “applicant failed to comply with the agreed-upon procedures.”
The Village denied the application for §207-c benefits filed by police officer Christopher Laird after determining that he did not file his application for such benefits within the time limit permitted for filing such claims set out in the CBA.
Laird appealed the determination and he was given an opportunity to demonstrate that he had credible reasons for failing to file the application within the agreed-upon period. His appeal was denied and ultimately the Village Board of Trustees affirmed the initial finding that Laird’s application seeking §207-c benefits was untimely.
The Appellate Division sustained the Village Board’s decision, ruling that the Board’s determination was “rationally based.”
The court said that the appropriate application forms were available to Laird upon request and found that other police officers following the procedure set out in the collective bargaining agreement had been granted “disability status” after filing a timely application for §207-c benefits.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01278.htm
=======================
General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic handbook.
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Disciplinary charges filed against employee for alleged negligent operation of an agency motor vehicle
Disciplinary charges filed against employee for alleged negligent operation of an agency motor vehicle
Taxi & Limousine Commission v Alvarez, OATH Index # 924/11
OATH Administrative Law Judge Alessandra Zorgniotti found that a Taxi & Limousine Commission inspector, Rafael Alvarez, negligently operated a City car when he failed to yield the right-of-way and collided with another car.
Specifically, Alvarez was charged with failing to yield the right-of-way to another vehicle and colliding with the other vehicle in violation of Agency Rules 35 (reasonable care of agency vehicles) and 36 (compliance with laws and rules relating to use of agency vehicles).
The ALJ noted that “The fact that [Alvarez] may be negligent as a matter of law in a tort action does not automatically demonstrate that he is guilty of misconduct in a disciplinary proceeding. Some unavoidable driving accidents may not be misconduct.”
As to “unavoidable driving accidents,” Judge Zorgniotti commented that “However, TLC inspectors are required to exercise “reasonable care” when driving a city vehicle, to follow the [State’s Vehicle and Traffic Law], and to prevent accidents.” The City Vehicle Driver Handbook provides in relevant part:
Preventable Accidents. An accident that is not deemed chargeable by the police may still be assessed as preventable by the agency’s Accident Review Committee. The committee shall recommend appropriate disciplinary action to be taken in connection with the violation of New York State Vehicle and Traffic Laws and the Agency’s Code of Conduct. Preventable accidents may subject the driver to agency disciplinary proceedings if agency rules have been violated. Preventable accidents may occur because the driver:
• Violated NYS Motor Vehicle Law, regardless of whether the police issued a summons;
• Operated the vehicle inattentively, including failure to exercise defensive driving skills;
Finding that Alvarez “failed to yield the right-of-way to another vehicle and collided with the other vehicle in violation of Agency Rules 35 and 36,” Judge Zorgniotti recommended that Alvarez be suspended without pay for twenty-work day.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-924.pdf
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Taxi & Limousine Commission v Alvarez, OATH Index # 924/11
OATH Administrative Law Judge Alessandra Zorgniotti found that a Taxi & Limousine Commission inspector, Rafael Alvarez, negligently operated a City car when he failed to yield the right-of-way and collided with another car.
Specifically, Alvarez was charged with failing to yield the right-of-way to another vehicle and colliding with the other vehicle in violation of Agency Rules 35 (reasonable care of agency vehicles) and 36 (compliance with laws and rules relating to use of agency vehicles).
The ALJ noted that “The fact that [Alvarez] may be negligent as a matter of law in a tort action does not automatically demonstrate that he is guilty of misconduct in a disciplinary proceeding. Some unavoidable driving accidents may not be misconduct.”
As to “unavoidable driving accidents,” Judge Zorgniotti commented that “However, TLC inspectors are required to exercise “reasonable care” when driving a city vehicle, to follow the [State’s Vehicle and Traffic Law], and to prevent accidents.” The City Vehicle Driver Handbook provides in relevant part:
Preventable Accidents. An accident that is not deemed chargeable by the police may still be assessed as preventable by the agency’s Accident Review Committee. The committee shall recommend appropriate disciplinary action to be taken in connection with the violation of New York State Vehicle and Traffic Laws and the Agency’s Code of Conduct. Preventable accidents may subject the driver to agency disciplinary proceedings if agency rules have been violated. Preventable accidents may occur because the driver:
• Violated NYS Motor Vehicle Law, regardless of whether the police issued a summons;
• Operated the vehicle inattentively, including failure to exercise defensive driving skills;
Finding that Alvarez “failed to yield the right-of-way to another vehicle and collided with the other vehicle in violation of Agency Rules 35 and 36,” Judge Zorgniotti recommended that Alvarez be suspended without pay for twenty-work day.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-924.pdf
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Placing an individual on unpaid administrative leave did not violate employee's Fourteenth Amendment rights to due process
Placing an individual on unpaid administrative leave did not violate employee's Fourteenth Amendment rights to due process
Paul Barrows v John Wiley and Luoluo, US Circuit Court of Appeals, 7th No. 05 C 658, 2007 U.S. App. LEXIS 3792
The U.S. Circuit Court of Appeals ruled that placing a public university employee on unpaid administrative leave and requiring him to use leave credits in order to remain on the payroll did not violate his Fourteenth Amendment rights to due process.
The University of Wisconsin-Madison had employed Paul Barrows in various academic capacities for more than 20 years, most recently as Vice Chancellor for Student Affairs. Barrows annual salary as Vice Chancellor was $191,749.00.
This case arose when Barrows was asked to submit a letter of resignation, which he claimed he did reluctantly. In a letter dated November 1, 2004, Barrows stated that he was stepping down from his position as Vice Chancellor for Student Affairs, explaining that “[w]ith recent changes in my family situation, and the stress those bring, I am proposing to take some personal leave time.”
Barrows later asserted that he did not resign from his position, but rather that one of the defendants, Wiley, had fired him.
While on “unpaid administrative leave,” Barrows continued to be paid at the annual rate of pay he received as Vice Chancellor for Student Affairs -- $191,749.00 – by charging his various leave accruals. On June 23, 2005, Barrows was placed in his backup position in the Provost’s Office with an annual salary of $72,881.00. That same day, Barrows was placed on paid administrative leave.
One of the complaints in Barrows’ petition alleged that forcing him to use his leave credits in order to remain on the payroll prior to his reinstatement in his “backup position” without notice or the opportunity to be heard violated his Fourteenth Amendment right to due process.
The Circuit Court affirmed the district court’s ruling that held that Barrows’ Fourteenth Amendment rights had not been violated. It said that:
1. There is no evidence in the record that Barrows requested to be placed in his backup position or challenged the University’s failure to immediately place him in his backup position.
2. Although Barrows asserted in his affidavit that he sought to return to work, this generalized statement is insufficient to establish that he sought his backup position.
3. Barrows failed to assert economic harm flowing from the University’s decision not to immediately place him in his backup position. As noted, while he was on leave Barrows continued to receive compensation at the Vice Chancellor rate of pay of $191,749.00 annually, as opposed to the rate of pay for his backup appointment, $72,881.00.
The court also rejected Barrows’ argument that he suffered an economic harm by being forced to use his leave time in order to remain on the payroll while on “unpaid administrative leave.” Barrows claimed that several University policies allowed employees to receive compensation for the leave credits that he was required to use in order to remain in pay status. In effect, Barrows contended that by forcing him to use this leave time, rather than placing him in the backup position, the University deprived him of the extra compensation he would have received after he left the backup position.
The problem with Barrows’ argument, said the court, is that he failed to present sufficient evidence of an economic harm because he failed to provide an adequate loss calculation.
Holding that Barrows failed to establish either a property interest or an economic harm flowing from the University’s decision not to immediately place Barrows in his backup position, and instead placed him on unpaid administrative leave, requiring him use his leave time in order to receive compensation, it ruled that Barrows’ due process claim failed. Accordingly, the district court properly granted the defendants’ motion for summary judgment.
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/placing-individual-on-upaid.html
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Paul Barrows v John Wiley and Luoluo, US Circuit Court of Appeals, 7th No. 05 C 658, 2007 U.S. App. LEXIS 3792
The U.S. Circuit Court of Appeals ruled that placing a public university employee on unpaid administrative leave and requiring him to use leave credits in order to remain on the payroll did not violate his Fourteenth Amendment rights to due process.
The University of Wisconsin-Madison had employed Paul Barrows in various academic capacities for more than 20 years, most recently as Vice Chancellor for Student Affairs. Barrows annual salary as Vice Chancellor was $191,749.00.
This case arose when Barrows was asked to submit a letter of resignation, which he claimed he did reluctantly. In a letter dated November 1, 2004, Barrows stated that he was stepping down from his position as Vice Chancellor for Student Affairs, explaining that “[w]ith recent changes in my family situation, and the stress those bring, I am proposing to take some personal leave time.”
Barrows later asserted that he did not resign from his position, but rather that one of the defendants, Wiley, had fired him.
While on “unpaid administrative leave,” Barrows continued to be paid at the annual rate of pay he received as Vice Chancellor for Student Affairs -- $191,749.00 – by charging his various leave accruals. On June 23, 2005, Barrows was placed in his backup position in the Provost’s Office with an annual salary of $72,881.00. That same day, Barrows was placed on paid administrative leave.
One of the complaints in Barrows’ petition alleged that forcing him to use his leave credits in order to remain on the payroll prior to his reinstatement in his “backup position” without notice or the opportunity to be heard violated his Fourteenth Amendment right to due process.
The Circuit Court affirmed the district court’s ruling that held that Barrows’ Fourteenth Amendment rights had not been violated. It said that:
1. There is no evidence in the record that Barrows requested to be placed in his backup position or challenged the University’s failure to immediately place him in his backup position.
2. Although Barrows asserted in his affidavit that he sought to return to work, this generalized statement is insufficient to establish that he sought his backup position.
3. Barrows failed to assert economic harm flowing from the University’s decision not to immediately place him in his backup position. As noted, while he was on leave Barrows continued to receive compensation at the Vice Chancellor rate of pay of $191,749.00 annually, as opposed to the rate of pay for his backup appointment, $72,881.00.
The court also rejected Barrows’ argument that he suffered an economic harm by being forced to use his leave time in order to remain on the payroll while on “unpaid administrative leave.” Barrows claimed that several University policies allowed employees to receive compensation for the leave credits that he was required to use in order to remain in pay status. In effect, Barrows contended that by forcing him to use this leave time, rather than placing him in the backup position, the University deprived him of the extra compensation he would have received after he left the backup position.
The problem with Barrows’ argument, said the court, is that he failed to present sufficient evidence of an economic harm because he failed to provide an adequate loss calculation.
Holding that Barrows failed to establish either a property interest or an economic harm flowing from the University’s decision not to immediately place Barrows in his backup position, and instead placed him on unpaid administrative leave, requiring him use his leave time in order to receive compensation, it ruled that Barrows’ due process claim failed. Accordingly, the district court properly granted the defendants’ motion for summary judgment.
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/placing-individual-on-upaid.html
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Employee’s termination for off-duty misconduct bars unemployment insurance award
Employee’s termination for off-duty misconduct bars unemployment insurance award
Matter of [Anonymous] v Commissioner of Labor, 38 AD3d 961
A New York State Trooper was involved in a one-vehicle accident while off-duty. Found to have been drinking alcohol prior to the accident and uncooperative with the local police officers investigating, the Division found that the Trooper’s actions were in violation of the Division’s Regulations prohibiting conduct "tending to bring discredit upon the Division of New York State Police.
The Trooper was formally censured, suspended without pay for 15 days and placed on probationary status for the six-month period. The Trooper accepted the penalty imposed.
While in probationary status and again while off-duty, The Trooper was involved in a two-car accident. He refused a chemical test to determine his blood alcohol content and was arrested for driving under the influence of alcohol. Following an internal investigation of that incident by the State Police, the Trooper was terminated.
The decision indicates that the ALJ’s ruling was essentially based on the fact that the Trooper had been acquitted of the driving under the influence charge. The Unemployment Insurance Appeal Board affirmed its ALJ’s decision. The Division of State Police appealed.
The Appellate Division overturned the unemployment insurance benefit award. It said that the determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve. However, there must be substantial evidence in the record to support the Board's decision. Here, said the court, it did not find substantial evidence supporting the Board's determination that the Trooper’s termination was not a result of disqualifying misconduct.
The court’s rationale: An employee's willful disregard of standards of behavior that an employer has a right to expect in connection with the employment involved … constitute[s] misconduct," citing Matter of Ladner [City of New York - Commissioner of Labor], 254 AD2d 563. In the words of the Appellate Division:
Such behavior is particularly egregious where, as here, "the claimant has already been placed on probationary status for similar conduct" (see Matter of Blake [Commissioner of Labor], 2 AD3d 1035.
The Division had argued that the Trooper's conduct in, among other things, “getting behind the wheel of a car after drinking alcohol while on probation and then refusing to take a chemical test constituted unsatisfactory conduct warranting his dismissal.” According to the decision, the Trooper admitted that "[he did] know that as a Trooper that [one] should not drink and drive."
The court ruled that “Under these particular circumstances, the Board's conclusion that claimant's actions did not rise to the level of disqualifying misconduct is not supported by substantial evidence in this record.”
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/discharge-for-misconduct-may-bar.html
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Matter of [Anonymous] v Commissioner of Labor, 38 AD3d 961
A New York State Trooper was involved in a one-vehicle accident while off-duty. Found to have been drinking alcohol prior to the accident and uncooperative with the local police officers investigating, the Division found that the Trooper’s actions were in violation of the Division’s Regulations prohibiting conduct "tending to bring discredit upon the Division of New York State Police.
The Trooper was formally censured, suspended without pay for 15 days and placed on probationary status for the six-month period. The Trooper accepted the penalty imposed.
While in probationary status and again while off-duty, The Trooper was involved in a two-car accident. He refused a chemical test to determine his blood alcohol content and was arrested for driving under the influence of alcohol. Following an internal investigation of that incident by the State Police, the Trooper was terminated.
The Trooper, however, was subsequently acquitted of the driving under the influence charge.
Following his termination the Trooper applied for unemployment insurance benefits. An Administrative Law Judge [ALJ] ruled that the Trooper’s behavior had not risen to the level of disqualifying misconduct.The decision indicates that the ALJ’s ruling was essentially based on the fact that the Trooper had been acquitted of the driving under the influence charge. The Unemployment Insurance Appeal Board affirmed its ALJ’s decision. The Division of State Police appealed.
The Appellate Division overturned the unemployment insurance benefit award. It said that the determination of whether an employee was terminated for misconduct is a factual question for the Board to resolve. However, there must be substantial evidence in the record to support the Board's decision. Here, said the court, it did not find substantial evidence supporting the Board's determination that the Trooper’s termination was not a result of disqualifying misconduct.
The court’s rationale: An employee's willful disregard of standards of behavior that an employer has a right to expect in connection with the employment involved … constitute[s] misconduct," citing Matter of Ladner [City of New York - Commissioner of Labor], 254 AD2d 563. In the words of the Appellate Division:
Such behavior is particularly egregious where, as here, "the claimant has already been placed on probationary status for similar conduct" (see Matter of Blake [Commissioner of Labor], 2 AD3d 1035.
The Division had argued that the Trooper's conduct in, among other things, “getting behind the wheel of a car after drinking alcohol while on probation and then refusing to take a chemical test constituted unsatisfactory conduct warranting his dismissal.” According to the decision, the Trooper admitted that "[he did] know that as a Trooper that [one] should not drink and drive."
The court ruled that “Under these particular circumstances, the Board's conclusion that claimant's actions did not rise to the level of disqualifying misconduct is not supported by substantial evidence in this record.”
The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/discharge-for-misconduct-may-bar.html
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February 22, 2011
The New York State Civil Service Law is now available as an "app" for use with an iPad, iPhone or iPod Touch
The New York State Civil Service Law is now available as an "app" for use with an iPad, iPhone or iPod Touch
Source: Appolicious Inc.
The developer of this application reports that it provides the full text of the 2011 New York Civil Service Law [sic] in an easily readable and searchable format and provides the user with the following:
The full text of the New York State Civil Service Law
The ability to perform a fast full-text search and to search within search results to narrow down matches and create bookmarks .
As to mechanics, the user can navigate through the text of the Civil Service Law by swiping a finger.
No network connection is required and the developer states that it "runs fast and uses little memory."
Additional features include support for Portrait or Landscape mode and allows the text to be rotated to the Landscape mode for a larger font display
For additional information click on:
http://www.appolicious.com/tech/apps/214746-ny-civil-service-law-2011-new-york-statutes-pda-wizard/developer_notes
Source: Appolicious Inc.
The developer of this application reports that it provides the full text of the 2011 New York Civil Service Law [sic] in an easily readable and searchable format and provides the user with the following:
The full text of the New York State Civil Service Law
The ability to perform a fast full-text search and to search within search results to narrow down matches and create bookmarks .
As to mechanics, the user can navigate through the text of the Civil Service Law by swiping a finger.
No network connection is required and the developer states that it "runs fast and uses little memory."
Additional features include support for Portrait or Landscape mode and allows the text to be rotated to the Landscape mode for a larger font display
For additional information click on:
http://www.appolicious.com/tech/apps/214746-ny-civil-service-law-2011-new-york-statutes-pda-wizard/developer_notes
In an Article 75 action to vacate an arbitration award, the moving party is required to prove its entitlement to the vacating of the arbitrator's award by the court
In an Article 75 action to vacate an arbitration award, the moving party is required to prove its entitlement to the vacating of the arbitrator's award by the court
Matter of New York State Dept. of Correctional Servs. v New York State Correctional Officers & Police Benevolent Assn., 2011 NY Slip Op 30254(U), Sup Ct, Albany County, Judge Joseph C. Teresi [Not selected for publication in the Official Reports]
In this CPLR §7511 action to annul an arbitration award on the grounds that the arbitrator exceeded his powers, Judge Teresi dismissed the Department of Correctional Services’ petition because the Department “failed to demonstrate its entitlement to annulment of the arbitrator's award.”
Judge Teresi explained that "An arbitration award may be vacated under CPLR 7511 (b)(1)(iii) as in excess of the arbitrator's authority only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."
The Department, said the court, did not cite either a strong public policy or irrationality as the basis for its excess power claim. Here the Department “must demonstrate that "a specific limitation on ... [the arbitrator's] power enumerated in the arbitration clause itself has been violated."
In this challenge to the award made by the arbitrator in a “disciplinary arbitration,” the arbitrator's power was set out in the Collective Bargaining Agreement as to “determinations of guilt or innocence and the appropriateness of proposed penalties, taking into account mitigating and extenuating circumstances.” Further, the “Disciplinary arbitrators shall neither add to, subtract from nor modify the provisions of the agreement... the disciplinary arbitrator may approve, disapprove or take any other appropriate action warranted under the circumstances."
After the hearing, the arbitrator found the employee involved “guilty of negligently causing damage to a State vehicle, the only charge against her.” However, the arbitrator rejected the Department’s proposed penalty and, instead, imposed a "$250.00 fine.”
The arbitrator's guilty finding and fine imposition were not at issue. Rather, the Department complained that arbitrator's decision concerning expungement of material from the employee’s personnel records and retention of jurisdiction over the disciplinary action exceed his authority.
The court said that the CBA does not specifically preclude the arbitrator from taking either action and that the Department did not introduce any evidence that the CBA contains a specific limitation on an arbitrator's continuing jurisdiction to ensure implementation of a penalty.
Judge Teresi said that the fact that the CBA was silence on this issue does not constitute a specific limitation nor did the arbitrator's expungement remedy "add to, subtract from nor modify" the CBA” but, rather, in accord with the CBA, the arbitrator took "other appropriate action warranted under the circumstances."
As the Department failed to demonstrate its entitlement to annulment of the Arbitrator's Award, Judge Teresi denied its petition.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2011/2011_30254.pdf
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Matter of New York State Dept. of Correctional Servs. v New York State Correctional Officers & Police Benevolent Assn., 2011 NY Slip Op 30254(U), Sup Ct, Albany County, Judge Joseph C. Teresi [Not selected for publication in the Official Reports]
In this CPLR §7511 action to annul an arbitration award on the grounds that the arbitrator exceeded his powers, Judge Teresi dismissed the Department of Correctional Services’ petition because the Department “failed to demonstrate its entitlement to annulment of the arbitrator's award.”
Judge Teresi explained that "An arbitration award may be vacated under CPLR 7511 (b)(1)(iii) as in excess of the arbitrator's authority only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."
The Department, said the court, did not cite either a strong public policy or irrationality as the basis for its excess power claim. Here the Department “must demonstrate that "a specific limitation on ... [the arbitrator's] power enumerated in the arbitration clause itself has been violated."
In this challenge to the award made by the arbitrator in a “disciplinary arbitration,” the arbitrator's power was set out in the Collective Bargaining Agreement as to “determinations of guilt or innocence and the appropriateness of proposed penalties, taking into account mitigating and extenuating circumstances.” Further, the “Disciplinary arbitrators shall neither add to, subtract from nor modify the provisions of the agreement... the disciplinary arbitrator may approve, disapprove or take any other appropriate action warranted under the circumstances."
After the hearing, the arbitrator found the employee involved “guilty of negligently causing damage to a State vehicle, the only charge against her.” However, the arbitrator rejected the Department’s proposed penalty and, instead, imposed a "$250.00 fine.”
The arbitrator's guilty finding and fine imposition were not at issue. Rather, the Department complained that arbitrator's decision concerning expungement of material from the employee’s personnel records and retention of jurisdiction over the disciplinary action exceed his authority.
The court said that the CBA does not specifically preclude the arbitrator from taking either action and that the Department did not introduce any evidence that the CBA contains a specific limitation on an arbitrator's continuing jurisdiction to ensure implementation of a penalty.
Judge Teresi said that the fact that the CBA was silence on this issue does not constitute a specific limitation nor did the arbitrator's expungement remedy "add to, subtract from nor modify" the CBA” but, rather, in accord with the CBA, the arbitrator took "other appropriate action warranted under the circumstances."
As the Department failed to demonstrate its entitlement to annulment of the Arbitrator's Award, Judge Teresi denied its petition.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2011/2011_30254.pdf
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February 21, 2011
PERB ALJ holds the County’s unilateral discontinuing its past practice of reimbursing Medicare Premiums to its retirees an improper practice
PERB ALJ holds the County’s unilateral discontinuing its past practice of reimbursing Medicare Premiums to its retirees an improper practice
In the Matter of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, and County of St. Lawrence, Public Employment Relations Board, Case no. U-29935 [Decision made available to NYPPL through the courtesy of Paul S. Bamberger, Esq., Senior Counsel, CSEA Legal Department.]
Civil Service Employees Association, Inc., Local 1000, filed an improper practice charge alleging that St. Lawrence County violated §209-a.1(d) of the Public Employees' Fair Employment Act (The Taylor Law) when it announced to all current employees changes in the County's Medicare Part B reimbursement policy. The County filed an answer denying that its actions violated the Act.
In lieu of a hearing, the parties stipulated the following critical facts:
1. In 1985, the County Board of Legislators passed Resolution No. 361-85 providing that the County would reimburse eligible retirees – i.e., County employees with at least five years of service -- twice each year for their cost of Medicare Part B premiums “for life”.
2. The premiums for Medicare Part B have increased over the years, from 1985 to the present, and the County continually reimbursed Medicare eligible retirees and their spouses for the full cost of the Medicare Part B premiums as they increased.
3. On November 17, 2009, the County Legislature passed Resolution No. 368-2009 amending the Medicare Part B reimbursement policy set forth in Resolution 361-85 whereby the County would not increase the reimbursement of Medicare Part B premiums above the amount of the cost of the premiums as of January 1,2010, regardless of any increases in Medicare Part B premiums after that date.
4. The County discontinued its reimbursement practice with respect to County employees who retire after December 31, 2010.
On this record, said PERB Administrative Law Judge Jean Doerr, “it must be found that a past practice exists, binding the County to continue the reimbursement of the Medicare Part B premium to eligible retirees and their spouses.”
Judge Doerr pointed out that the parties stipulated that the reimbursement policy began in 1985 and continued to the present with the full knowledge of County management and County employees. Accordingly, and consistent with the Board's holding in Matter of Chenango Forks, [40 PERB 3012 (2007)], the ALJ ruled that the payment of Medicare Part B premiums encompasses a mandatory subject of collective bargaining "as it is in the nature of benefits related to health insurance for employees upon retirement, whether or not those employees retire during the life of the agreement."
The ALJ rejected the County’s theory “that because the reimbursements were made as a result of a public act of a municipal board, County employees could not have reasonably expected that the payment of Medicare Part B premiums would continue unchanged,” concluding that its argument in this respect was misplaced.*
Judge Doerr explained that “the nature of the enabling legislation upon which an employer acts is not controlling” as it is the act of the employer in providing the benefit, and not the legislative body at whose direction the employer acts, "which we look to in determining, as here, the existence of an enforceable past practice."
Further, the ALJ noted that the County stipulated “that the 24-year practice was well known to all County employees” and created an “expectation of the continuation of the practice … from its duration with consideration of the specific circumstances under which the practice has existed."
Judge Doerr ruled that the County violated §209-a.1(d) of the Taylor Law when it unilaterally announced to its current employees that it would no longer reimburse retirees and their spouses for the cost of Medicare Part B premiums for those unit employees who retire after December 31, 2010, and that reimbursement would be frozen at January 1, 2010 levels for those unit employees who retire by December 31, 2010.
New York Public Personnel Law earlier posted materials related to the issue of discontinuing the reimbursement of Medicare Premiums, in whole or in part, to retirees at:
http://publicpersonnellaw.blogspot.com/2010/09/school-district-ordered-to-reimburse.html
and at:
http://publicpersonnellaw.blogspot.com/2010/05/reduction-of-medicare-premiums.html
* The County argued the acts of a public act of a municipal board are subject to repeal and amendment and is therefore recognized as temporary in nature, citing to Collins v. City of Schenectady, 256 AD 389 (3d Dept 1939), and Jewett v. Luau-Nyack Corporation, 31 NY2d 298 (1972).
In the Matter of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, and County of St. Lawrence, Public Employment Relations Board, Case no. U-29935 [Decision made available to NYPPL through the courtesy of Paul S. Bamberger, Esq., Senior Counsel, CSEA Legal Department.]
Civil Service Employees Association, Inc., Local 1000, filed an improper practice charge alleging that St. Lawrence County violated §209-a.1(d) of the Public Employees' Fair Employment Act (The Taylor Law) when it announced to all current employees changes in the County's Medicare Part B reimbursement policy. The County filed an answer denying that its actions violated the Act.
In lieu of a hearing, the parties stipulated the following critical facts:
1. In 1985, the County Board of Legislators passed Resolution No. 361-85 providing that the County would reimburse eligible retirees – i.e., County employees with at least five years of service -- twice each year for their cost of Medicare Part B premiums “for life”.
2. The premiums for Medicare Part B have increased over the years, from 1985 to the present, and the County continually reimbursed Medicare eligible retirees and their spouses for the full cost of the Medicare Part B premiums as they increased.
3. On November 17, 2009, the County Legislature passed Resolution No. 368-2009 amending the Medicare Part B reimbursement policy set forth in Resolution 361-85 whereby the County would not increase the reimbursement of Medicare Part B premiums above the amount of the cost of the premiums as of January 1,2010, regardless of any increases in Medicare Part B premiums after that date.
4. The County discontinued its reimbursement practice with respect to County employees who retire after December 31, 2010.
On this record, said PERB Administrative Law Judge Jean Doerr, “it must be found that a past practice exists, binding the County to continue the reimbursement of the Medicare Part B premium to eligible retirees and their spouses.”
Judge Doerr pointed out that the parties stipulated that the reimbursement policy began in 1985 and continued to the present with the full knowledge of County management and County employees. Accordingly, and consistent with the Board's holding in Matter of Chenango Forks, [40 PERB 3012 (2007)], the ALJ ruled that the payment of Medicare Part B premiums encompasses a mandatory subject of collective bargaining "as it is in the nature of benefits related to health insurance for employees upon retirement, whether or not those employees retire during the life of the agreement."
The ALJ rejected the County’s theory “that because the reimbursements were made as a result of a public act of a municipal board, County employees could not have reasonably expected that the payment of Medicare Part B premiums would continue unchanged,” concluding that its argument in this respect was misplaced.*
Judge Doerr explained that “the nature of the enabling legislation upon which an employer acts is not controlling” as it is the act of the employer in providing the benefit, and not the legislative body at whose direction the employer acts, "which we look to in determining, as here, the existence of an enforceable past practice."
Further, the ALJ noted that the County stipulated “that the 24-year practice was well known to all County employees” and created an “expectation of the continuation of the practice … from its duration with consideration of the specific circumstances under which the practice has existed."
Judge Doerr ruled that the County violated §209-a.1(d) of the Taylor Law when it unilaterally announced to its current employees that it would no longer reimburse retirees and their spouses for the cost of Medicare Part B premiums for those unit employees who retire after December 31, 2010, and that reimbursement would be frozen at January 1, 2010 levels for those unit employees who retire by December 31, 2010.
New York Public Personnel Law earlier posted materials related to the issue of discontinuing the reimbursement of Medicare Premiums, in whole or in part, to retirees at:
http://publicpersonnellaw.blogspot.com/2010/09/school-district-ordered-to-reimburse.html
and at:
http://publicpersonnellaw.blogspot.com/2010/05/reduction-of-medicare-premiums.html
* The County argued the acts of a public act of a municipal board are subject to repeal and amendment and is therefore recognized as temporary in nature, citing to Collins v. City of Schenectady, 256 AD 389 (3d Dept 1939), and Jewett v. Luau-Nyack Corporation, 31 NY2d 298 (1972).
February 19, 2011
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February 18, 2011
Administrative decision to be reconsidered after court finds that not all of the arguments of the petitioner were considered by the hearing officer
Administrative decision to be reconsidered after court finds that not all of the arguments of the petitioner were considered by the hearing officer
Matter of Cohen v New York State & Local Employees' Retirement Sys., 2011 NY Slip Op 01109, Appellate Division, Third Department
This decision by the Appellate Division illustrates the importance of the administrative hearing officer considering, and ruling on, all of the arguments and theories submitted by a petitioner in the course of an administrative hearing.
Morton A. Cohen, Esq., was employed as an Administrative Law Judge by the New York City Parking Violations Bureau [PVB] from 1998 to 2006.
In 2007, Cohen, then a member of the New York State Employees’ Retirement System [ERS], attempted to "buy back" his time with the PVB for members service credit in ERS.
An ERS Hearing Officer found that Cohen failed to establish entitlement to prior service credit for his service with the PVB and the State Comptroller accepted the Hearing Officer’s findings and conclusions, prompting Cohen to file an Article 78 petition seeking to overturn the Comptroller’s decision.
The Appellate Division noted that Retirement and Social Security Law §609(b)(1) provides that "[a] member shall be eligible to obtain retirement credit hereunder for previous service with a public employer . . . if such service . . . would have been creditable in one of the public retirement systems of the state."
Accordingly, said the court, Cohen’s entitlement to prior service credit is dependent on whether he was eligible for membership in the New York City Employees' Retirement System [NYCERS]. Further, said the court, the Administrative Code of the City of New York §13-104(1) provides, in relevant part, that membership in NYCERS "shall consist of . . . [a]ll persons in city-service."
"City-Service" is defined as "service, whether appointive or elective, as an officer or employee of the city or state of New York . . . so far as such service is paid for by the city" (Administrative Code of the City of New York §13-101[3][a]).
Noting that the State’s Vehicle and Traffic Law §236(2)(d) provides, in pertinent part, that "hearing examiners [of a parking violations bureau] shall not be considered employees of the city in which the administrative tribunal has been established," the Appellate Division ruled that substantial evidence supports the finding that Cohen was not an "employee" of the City of New York.
However, the court vacated the Comptroller's determination and remit the matter for further findings of fact “because the Hearing Officer failed to address [Cohen’s] claim that he was eligible for prior service credits as an ‘officer.’"
Cohen had specifically argued that, even if not an "employee," he should be considered an "officer" of the City of New York due to the powers, duties and overall nature of his position as a hearing examiner with the PVB.*
The Appellate Division said that “the failure to address [Cohen’s] contention that he was an "officer" of the City of New York prevented it from assessing whether the Comptroller’s denial of Cohen’s application was rational.
NYPPL has summarized other cases involving the denial of claims based on a finding that the individual “was not an employee of a public entity” or was “an employee of a non-public entity” at:
http://publicpersonnellaw.blogspot.com/2011/01/individuals-performing-services-for_27.html
and
http://publicpersonnellaw.blogspot.com/2011/02/compensation-paid-to-member-of-public.html
* Unless otherwise provided by law, while not all employees of a public entity are “officers,” “officers” of a public entity are “employees” of that entity.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01109.htm
.
Matter of Cohen v New York State & Local Employees' Retirement Sys., 2011 NY Slip Op 01109, Appellate Division, Third Department
This decision by the Appellate Division illustrates the importance of the administrative hearing officer considering, and ruling on, all of the arguments and theories submitted by a petitioner in the course of an administrative hearing.
Morton A. Cohen, Esq., was employed as an Administrative Law Judge by the New York City Parking Violations Bureau [PVB] from 1998 to 2006.
In 2007, Cohen, then a member of the New York State Employees’ Retirement System [ERS], attempted to "buy back" his time with the PVB for members service credit in ERS.
An ERS Hearing Officer found that Cohen failed to establish entitlement to prior service credit for his service with the PVB and the State Comptroller accepted the Hearing Officer’s findings and conclusions, prompting Cohen to file an Article 78 petition seeking to overturn the Comptroller’s decision.
The Appellate Division noted that Retirement and Social Security Law §609(b)(1) provides that "[a] member shall be eligible to obtain retirement credit hereunder for previous service with a public employer . . . if such service . . . would have been creditable in one of the public retirement systems of the state."
Accordingly, said the court, Cohen’s entitlement to prior service credit is dependent on whether he was eligible for membership in the New York City Employees' Retirement System [NYCERS]. Further, said the court, the Administrative Code of the City of New York §13-104(1) provides, in relevant part, that membership in NYCERS "shall consist of . . . [a]ll persons in city-service."
"City-Service" is defined as "service, whether appointive or elective, as an officer or employee of the city or state of New York . . . so far as such service is paid for by the city" (Administrative Code of the City of New York §13-101[3][a]).
Noting that the State’s Vehicle and Traffic Law §236(2)(d) provides, in pertinent part, that "hearing examiners [of a parking violations bureau] shall not be considered employees of the city in which the administrative tribunal has been established," the Appellate Division ruled that substantial evidence supports the finding that Cohen was not an "employee" of the City of New York.
However, the court vacated the Comptroller's determination and remit the matter for further findings of fact “because the Hearing Officer failed to address [Cohen’s] claim that he was eligible for prior service credits as an ‘officer.’"
Cohen had specifically argued that, even if not an "employee," he should be considered an "officer" of the City of New York due to the powers, duties and overall nature of his position as a hearing examiner with the PVB.*
The Appellate Division said that “the failure to address [Cohen’s] contention that he was an "officer" of the City of New York prevented it from assessing whether the Comptroller’s denial of Cohen’s application was rational.
NYPPL has summarized other cases involving the denial of claims based on a finding that the individual “was not an employee of a public entity” or was “an employee of a non-public entity” at:
http://publicpersonnellaw.blogspot.com/2011/01/individuals-performing-services-for_27.html
and
http://publicpersonnellaw.blogspot.com/2011/02/compensation-paid-to-member-of-public.html
* Unless otherwise provided by law, while not all employees of a public entity are “officers,” “officers” of a public entity are “employees” of that entity.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01109.htm
.
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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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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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