A statutory general power of appointment implies a power to terminate the services of the appointee

A statutory general power of appointment implies a power to terminate the services of the appointee
Matter of City Council of City of Mount Vernon v Batra, 2011 NY Slip Op 02664, Appellate Division, Second Department

Ravi Batra, former counsel to the Office of the Mayor of the City of Mount Vernon, contended that he was unlawfully terminated from his position, arguing that his appointment pursuant to Section 66 of the Mount Vernon City Charter was irrevocable and not at the pleasure of the mayor.

The Appellate Division, sustaining Supreme Court’s dismissal of Barta’s petition, held that “Where, as here, the power of appointment is conferred in general terms and without restriction, the right to remove the appointee is within the discretion or at the pleasure of the appointing power.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02664.htm
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Arbitrating an alleged breach of a collective bargaining agreement

Arbitrating an alleged breach of a collective bargaining agreement

Albala v Nassau County, 270 AD2d 482

The Albala case illustrates the general rule that the employee organization, rather than an individual unit member, is the party that must prosecute any alleged violation of a collective bargaining agreement negotiated under the Taylor Law to arbitration.

The Appellate Division affirmed the dismissal of Albala’s petition, pointing out that a union member has no individual rights under a collective bargaining agreement, which he or she can enforce against his or her employer. In other words, the agreement is the property of the union.

Another factor mentioned in the court’s ruling: CSEA did not avail itself of the remedy provided by the collective bargaining agreement to press Albala’s complaint. This, said the Appellate Division, meant that the basic rule requiring that a party exhaust the administrative remedies otherwise available was not honored, thus precluding any judicial review of the matter.

The court also commented that determination of the Nassau County Office of Labor Relations was not arbitrary or capricious since it was rationally based on the facts before it.

One exception to the general rule that the union “owns the contract” for the purpose of enforcing the terms of the agreement: an individual may bring an action on his or her own behalf if he or she can demonstrate that the union had violated its duty of fair representation with respect to the rights of the unit member in the matter.

However, a claim that an employee organization violated its duty of fair representation cannot be argued in an Article 75 action to vacate the arbitration award.

Two rulings by state courts illustrate this point, Croman v City University of New York, 277 AD2d 185, and Parisi v NYC Housing Authority, Appellate Division, First Department, 269 AD2d 210.


Croman involved a disciplinary action. Croman, a member of the faculty at Borough of Manhattan Community College [BMCC], had been found guilty of taking a paid sabbatical leave of absence based on misrepresentations. The penalty imposed by the arbitrator: an unpaid suspension for one-half year, to reimburse the employer for the expenses it incurred during her sabbatical leave. BMCC had asked the arbitrator to terminate Croman.

Croman’s Article 75 petition asked the court to vacate the arbitration award because, among other things, her union representative did not fairly and adequately represent her in the disciplinary action. Justice York’s response:

Fair representation claims should be asserted in plenary [full and unlimited] actions in which the court is asked to determine [1] whether the union breached its duty was and [2] whether or not the collective bargaining agreement was violated.

Justice York’s conclusion: even assuming that Croman ha[s] a viable fair representation claim under New York State law ... a proceeding to vacate the arbitration award [is] not the proper forum for asserting it. Justice York cited Obot v NYS Department of Correctional Services, 89 NY2d 883 in support of his decision.

In sustaining Justice York’s determination, the Appellate Division said:

Absent clear language in Education Law §6212 (9) prohibiting arbitration of disciplinary matters involving tenured faculty, we reject petitioner's argument that, since that section vests the power to remove tenured faculty solely in respondent's Board of Trustees, public policy is violated by a collective bargaining agreement delegating the authority to discipline to an arbitrator at the employee's option. “It is well settled that a contract provision in a collective bargaining agreement may modify, supplement, or replace the more traditional forms of protection afforded public employees.” (Dye v New York City Tr. Auth., 88 AD2d 899, affd 57 NY2d 917.) Here, the collective bargaining agreement that governed petitioner's employment gave her the option to either accept the penalty recommended by respondent's designee or take the matter to arbitration. Petitioner elected arbitration. Public policy does not nullify the choice she made (cf., Matter of Abramovich v Board of Educ., 46 NY2d 450, cert denied 444 US 845).

In the Parisi case, the Appellate Division ruled that Katherine Parisi, a former employee of the New York City Housing Authority had no right to sue the Authority under the collective bargaining agreement.

Here, said the court, her remedies for challenging alleged breaches of the agreement were limited to filing a complaint under the grievance procedure set forth in the contract.

 Parisi had claimed that she was entitled to certain payments under the terms of the agreement. The court said that Parisi did not gain a right to sue by reason of her union’s refusal to take up her grievance, unless such refusal amounted to a breach by the union of its duty of fair representation. Dismissing Parisi’s petition, the court said that she had not shown that the union had breach this duty.

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Liquidation of sick leave benefits upon retirement

Liquidation of sick leave benefits upon retirement

O’Brien v Deer Park UFSD, 127 F. Supp.2d 342

Federal District Court Judge Denis R. Hurley ruled that paying teachers who retire after age 55 less for their unused sick leave than that paid to teachers who retire before attaining age 56 as provided by the terms of an agreement negotiated pursuant to the Taylor Law violated the federal Age Discrimination in Employment Act [ADEA] and the Older Workers’ Benefit Protection Act [OWBPA].

The collective bargaining agreement provided that teachers who retired during the first year after reaching age 55 would be paid in full for all of their accumulated sick leave; those who retired later, i.e. at age 56 or older, would per paid a decreasing percentage of the full value of their sick leave credits.

The court said that under ADEA and Older Workers Benefit Protection Act, employment benefits must be equally available regardless of age.

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A party seeking a writ of prohibition barring a judicial or quasi-judicial tribunal from acting on a matter before it has the burden of persuasion

A party seeking a writ of prohibition barring a judicial or quasi-judicial tribunal from acting on a matter before it has the burden of persuasion
Matter of North Syracuse Cent. School Dist. v New York State Div. of Human Rights, 2011 NY Slip Op 02604, Appellate Division, Fourth Department

The significant issue in this action: Should Supreme Court have granted North Syracuse Central School District’s petition seeking a “writ of prohibition” barring the New York State Division of Human Rights from taking further action on a complaint alleging unlawful discrimination filed with it.*

The Appellate Division decided that Supreme Court should not have issued such a writ, explaining that "[t]he Court of Appeals has held that a writ of prohibition is not an appropriate vehicle to be used to bar [respondent] from conducting an investigation because the [r]emedy for asserted error of law in the exercise of [respondent's] jurisdiction or authority lies first in administrative review' " [Matter of Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d 789].

As the Division "has jurisdiction to investigate complaints of discrimination and any error of law in the exercise of that jurisdiction must first be challenged by administrative review before judicial review pursuant to §298 of the Executive Law is available . . . The extraordinary writ of prohibition does not lie to challenge [respondent's] initial acceptance of jurisdiction over a complaint of discrimination.”

Finding that North Syracuse had not established the "futility of the administrative remedy; irreparable harm in the absence of prompt judicial intervention; or a claim of unconstitutional action," the Appellate Division ruled that Supreme Court “erred in prohibiting [the Division] from taking further action on the complaint.

* The writ of prohibition is one of number of the ancient “common law” writs and is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction."  Other such ancients writs include a writ a writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send it record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.


The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02604.htm
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A party seeking a writ of prohibition barring a judicial or quasi-judicial tribunal from acting on a matter before it has the burden of persuasion

A party seeking a writ of prohibition barring a judicial or quasi-judicial tribunal from acting on a matter before it has the burden of persuasion
Matter of North Syracuse Cent. School Dist. v New York State Div. of Human Rights, 2011 NY Slip Op 02604, Appellate Division, Fourth Department

The significant issue in this action: Should Supreme Court have granted North Syracuse Central School District’s petition seeking a “writ of prohibition” barring the New York State Division of Human Rights from taking further action on a complaint alleging unlawful discrimination filed with it.*

The Appellate Division decided that Supreme Court should not have issued such a writ, explaining that "[t]he Court of Appeals has held that a writ of prohibition is not an appropriate vehicle to be used to bar [respondent] from conducting an investigation because the [r]emedy for asserted error of law in the exercise of [respondent's] jurisdiction or authority lies first in administrative review' " [Matter of Tessy Plastics Corp. v State Div. of Human Rights, 47 NY2d 789].

As the Division "has jurisdiction to investigate complaints of discrimination and any error of law in the exercise of that jurisdiction must first be challenged by administrative review before judicial review pursuant to §298 of the Executive Law is available . . . The extraordinary writ of prohibition does not lie to challenge [respondent's] initial acceptance of jurisdiction over a complaint of discrimination.”

Finding that North Syracuse had not established the "futility of the administrative remedy; irreparable harm in the absence of prompt judicial intervention; or a claim of unconstitutional action," the Appellate Division ruled that Supreme Court “erred in prohibiting [the Division] from taking further action on the complaint.

* The writ of prohibition is one of number of the ancient “common law” writs and is issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction."  Other such ancients writs include a writ a writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.


The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02604.htm
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Challenging a Section 3020-a disciplinary decision

Challenging a Section 3020-a disciplinary decision
Great Neck UFSD v Brandman, Appellate Division, 286 AD2d 735 

It is not a simple task to overturn an arbitration award as the Great Neck decision demonstrates.

The Great Neck Union Free School District attempted to vacate or modify a Section 3020-a disciplinary arbitration award by filing a petition pursuant to Article 78 of the Civil Practice Law and Rules [CPLR]. Its efforts were rebuffed by Nassau Supreme Court Justice Ralph Franco.

The Appellate Division sustained Justice Franco’s ruling, holding:

The Supreme Court properly confirmed the Hearing Officer's determination since the petitioner did not demonstrate any basis for vacating it under CPLR 7511 (see, Education Law § 3020-a [5]; Matter of Board of Educ. v Ziparo, 275 AD2d 411; cf., Matter of Board of Educ. v Yusko, 269 AD2d 445, 446). The Hearing Officer's determination has a rational basis and is supported by the record (see, CPLR 7801; Matter of Fischer v Smithtown Cent. School Dist., 262 AD2d 560).

The district had filed Section 3020-a charges against school psychologist Edward Brandman. The charges included allegations that Brandman:

1. Had an intimate sexual relationship with the mother of students under his care;

2. Failed to disclose this relationship to his supervisors;

3. Discouraged the mother from terminating her relationship with him; and

4. Discouraged the mother from reconciling with the natural father of the children.

Arbitrator Joseph P. Sireman had found Brandman guilty of professional misconduct. The penalty imposed: a two-year suspension without pay. The hearing officer said that the penalty imposed reflected Brandman’s otherwise [22 year] unblemished employment record with the district.

In response, the district filed a petition pursuant to Article 78 of the CPLR, contending that as a matter of public policy, the award be vacated and [Brandman] terminated.

Justice Franco dismissed the district’s petition seeking to vacate the award for a number of reasons.

He first noted that Section 3020-a(5) provides that appeals from such determinations must be filed within ten days of its receipt pursuant to Article 75, Section 7511 of the CPLR rather than pursuant to Article 78 of the CPLR.*

The court also pointed out that the basis for challenging an arbitration award under Article 75 is very limited. Among the reasons for asking a court vacate such an award are the following:

1. The award resulted from corruption, fraud or misconduct in procuring the award; or

2. Partiality on the part of the arbitrator; or

3. The arbitrator exceeded his or her authority or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.

The court found nothing in the record to suggest any such basis for overturning the arbitrator’s award existed.

Justice Franco concluded that [g]iven the charges and [Brandman’s] otherwise unblemished record, the hearing officer’s determination imposing a two year suspension without pay is a significant financial penalty, reflects the seriousness of the charges offered as proven by the district and cannot be construed by this Court as irrational or against public policy.

Justice Franco also commented that his analysis cannot change because the facts or implications of a case might be disturbing, or because an employee’s conduct is particularly reprehensible.

As to the district’s public policy argument, the court said that an alleged violation of public policy is not one of the justifications set out in Article 75 for vacating an arbitrator’s determination.

In certain cases, however, the courts have adopted a violation of a strong public policy standard when considering petitions to vacate an arbitrator’s award.

For example, in Matter of the Town of Callicoon, 79 NY2d 907, the Court of Appeals has ruled that a court could vacate an arbitrator’s award if it determines that the award violated a strong public policy.

More recently, noted Justice Franco, the Court of Appeals addressed the public policy exception as justification for overturning an arbitrator’s award. In State Correctional Offices [Kuhnel] and Police Benevolent Association v State, 94 NY2d 321, it said that:

The public policy exception has its roots in common law, where it is well settled that a court will not enforce a contract that violates public policy. A court, however, may not vacate an award on public policy grounds when vague or attenuated considerations of a general public interest are at stake.

The Kuhnel case involved a State corrections officer, Edward Kuhnel, who was suspended from duty and served with disciplinary charges after the Department of Correctional Services learned that he flew a Nazi flag from the front porch of his home on December 10, 1996 -- the 55th anniversary of Hitler’s declaration of war on the United States.

The arbitrator dismissed the charges and the department sought to vacate the award on the theory the arbitrator’s ruling concerning Kuhnel’s off-duty activities violated a strong public policy. The Court of Appeals sustained the arbitrator’s determination, holding:

… looking at the only prong of the public policy exception argued before this Court, we conclude that the award does not violate a well-defined constitutional, statutory or common law of this State.

In another Section 3020-a disciplinary action that involved considering public policy with respect to the penalty imposed, the Appellate Division, Second Department, found that a disciplinary penalty consisting of counseling, remediation, and a 60-day suspension, violated a strong public policy.

East Hampton Union Free School District teacher Jeffrey Yusko was found guilty of unwanted and inappropriate physical contact and verbal conduct ... with the students entrusted to his care over the course of three school years.

East Hampton filed an Article 75 petition seeking to vacate the penalty imposed by the hearing officer. A State Supreme Court judge granted the district’s petition and directed it to terminate Yusko.

The Appellate Division sustained the lower court’s granting the district’s petition as far as it vacated the penalty imposed by the hearing officer but held that the Supreme Court had exceeded its authority when it substituted the penalty of dismissal.

The court said the lower court should have remanded the matter for a rehearing before a different hearing officer and that a new determination on the issue of the penalty to be imposed should be made by the new hearing officer [East Hampton Union Free School District v Jeffrey Yusko, 269 AD2d 445]. 

* Section 3020-a.5 provides: Appeal. Not later than ten days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seven thousand five hundred eleven of the civil practice law and rules.
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Workers found guilty of a “slow-down” in completing their assigned tasks based on circumstantial evidence

Workers found guilty of a “slow-down” in completing their assigned tasks based on circumstantial evidence

Department of Sanitation v Venning, OATH Index #763/11 and Index #764/11

Two New York City sanitation workers were charged with willfully failing to complete their route.

OATH Administrative Law Judge Tynia Richard found that circumstantial evidence supported the inference that the workers intentionally slowed their pace, and recommended a five-day penalty as to each worker for that charge.

One employee was also charged with disobeying an order from a supervisor, directing profanity at her, and recklessly driving away while she was stepping away from the truck, all of which charges were sustained.

ALJ Richard recommended a 30-day suspension without pay for that incident.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-763.pdf

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Employee claims coercion in his agreeing to a demotion in lieu of disciplinary action

Employee claims coercion in his agreeing to a demotion in lieu of disciplinary action
Pagano v Port Authority, 270 AD2d 206

The Employment Relations Panel of the Port Authority of New York and New Jersey affirmed Authority Police Sergeant Frank Pagano agreement to accept a demotion to patrol officer.

Pagano sued, seeking reinstatement to his former position. Pagano claimed that his agreement to the demotion was coerced. The Appellate Division rejected his petition. The court decided that the Panel’s determination may not be disturbed since substantial evidence supports the Panel’s decision that “the Port Authority did not unduly influence or coerce petitioner’s request for demotion from the rank of sergeant to that of police officer.”

Coercion is an issue that sometimes emerges in the course of a disciplinary settlement. An individual may claim that he or she was threaten with disciplinary action if he or she declined to resign or refused to agree to some personnel change demanded by the appointing authority.

The Court of Appeals addressed this question in Rychlick v Coughlin, 63 NY2d 643.

Rychlick, a state correction officer, was told that unless he immediately submitted his resignation, formal disciplinary charges would be filed against him. He submitted his resignation.


A few days later, claiming that he had been forced to submit his resignation, Rychlick attempted to withdraw it. The department refused to allow him to withdraw the resignation and Rychlick sued on the grounds that it had been obtained under duress and thus was void.

The general rule is that a resignation must be in writing and once submitted, its withdrawal or recession requires the approval of the appointing authority.

The Court of Appeals, upholding Corrections’ refusal to allow Rychlick to withdraw the resignation, said that threatening an employee with disciplinary action if he or she did not resign did not constitute duress since the appointing authority had the legal right to file such charges.

The basic principle: threatening to do what one had the legal right to do does not constitute duress.

Another aspect of demanding that an individual submit his or her resignation or face disciplinary charges: such a resignation may be considered in determining the individual’s eligibility for public employment in the future.

Civil Service Law Section 50.4(e) authorizes the State Department of Civil Service or a civil service commission to disqualify an applicant or employee “who has been dismissed from a permanent position in the public service upon stated written charges of incompetence or misconduct, after an opportunity to answer such charges in writing, or who has resigned from, or whose service has otherwise been terminated in, a permanent or temporary position in the public service, where it is found after appropriate investigation or inquiry that such resignation or termination resulted from his incompetency or misconduct, provided, that in cases of dismissal, resignation or termination after written charges of incompetency, the examination or certification in question be for a position that requires the performance of a duty or duties which are the same as or similar to the duty or duties of the position from which the applicant has been dismissed, resigned or terminated on account of incompetency”.
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