Disqualification of candidates for employment as police officers

Disqualification of candidates for employment as police officers

Needleman v Rockland County, 270 A.D.2d 423

The Rockland County Commissioner of Personnel disqualified Seth Needleman, David Oliver and Donna Russo for appointment as patrol officers in the Rockland County Sheriff’s Department. The three applicants sued in an effort to overturn the commissioner’s determination.*

Russo complained that the personnel commissioner had improperly disqualified her from appointment as a patrol officer.

The Appellate Division disagreed, commenting that the commissioner did not act irrationally or arbitrarily in relying upon “the evaluations of two independent psychologists, who used objective tests, to determine that [Russo] was not qualified for the position of patrol officer.”

The standards applied by the court in resolving Russo’s appeal:

1. An appointing authority has wide discretion in determining the fitness of candidates.

2. Such discretion is particularly broad in the hiring of persons for positions in law enforcement, to whom high standards may be applied.

3. The courts will not interfere with the discretion of the appointing authority to determine the qualifications of candidates unless the determination warrants judicial intervention because it is irrational and arbitrary.

Finding that Russo’s disqualification was not an abuse of discretion, the Appellate Division sustained the Supreme Court’s dismissal of her petition.

Section 50.4 of the Civil Service Law provides for the disqualification of applicants or appointees by the state civil service department or the municipal commission having jurisdiction. Among the reasons set out in Section 50.4 for disqualifying an applicant: the applicant lacks any of the established requirements for admission to the examination or for appointment to the position.**

However, in such cases the applicant must be provided with a pre-disqualification opportunity to object to his or proposed disqualification. In the words of Section 50.4:

No person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefore and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.

Although a full and formal pre-disqualification hearing is not required, the individual must be advised of his or her right to file a written objection to the disqualification and given a reasonable opportunity to submit the objection to the municipal commission or the state department.

Further, as a general rule, only the responsible municipal civil service commission, or in the case of employment by the State, the State Department of Civil Service may disqualify an applicant for employment in the public service.

Typically, the appointing authority does not have any independent authority to disqualify an individual in contrast to declining to appoint an individual certified for permanent appointment to a position in the competitive class consistent with the so-called Rule of Three [Section 61.1, Civil Service Law.***
 

However, the appointing authority may request a municipal commission or the State Department of Civil Service to initiate action that could lead to the disqualification of the applicant by the commission or by the State Department of Civil Service.

* The court dismissed both Needleman’s and Oliver’s appeals as abandoned and only considered Russo’s challenge her disqualification.

** Section 50.4 permits the disqualification of an applicant or an appointee (a) who is found to lack any of the established requirements for admission to the examination or for appointment to the position for which he applies; or (b) who is found to have a disability which renders him or her unfit to perform in a reasonable manner the duties of the position in which he or she seeks employment, or which may reasonably be expected to render him or her unfit to continue to perform in a reasonable manner the duties of such position; or (d) who has been guilty of a crime; or (e) who has been dismissed from a permanent position in the public service upon stated written charges of incompetency 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; or (f) who has intentionally made a false statement of any material fact in his application; or (g) who has practiced, or attempted to practice, any deception or fraud in his application, in his examination, or in securing his eligibility or appointment; or (h) who has been dismissed from private employments because of habitually poor performance.

*** Section 61.1, in pertinent part, provides: Appointment and promotion. 1. Appointment or promotion from eligible lists. Appointment or promotion from an eligible list to a position in the competitive class shall be made by the selection of one of the three persons certified by the appropriate civil service commission as standing highest on such eligible list who are willing to accept such appointment or promotion.
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The party objecting to an arbitration award has a heavy burden to meet to prevail

The party objecting to an arbitration award has a heavy burden to meet to prevail
Matter of Cherry v New York State Ins. Fund, 2011 NY Slip Op 02797, Appellate Division, First Department

Supreme Court denied Stephanie Cherry’s Article 75 petition seeking to vacate the arbitration award upholding State Insurance Fund’s determination to terminate her employment based on violations of its zero-tolerance workplace violence policy.

Cherry appealed but the Appellate Division ruled that Cherry failed to meet her heavy burden of establishing that the arbitration award was irrational, or in violation of any of the grounds enumerated in CPLR 7511(b).*

Further, said the court, “There exists no basis to disturb an arbitrator's finding because ‘unless there is no proof whatever to justify the award so as to render it entirely irrational . . .the arbitrator's finding is not subject to judicial oversight.’”

Addressing another argument raised by Cherry, -- the award should be vacated due to [the State Insurance Fund’s] non-compliance with the procedures of CPLR Article 75 – the Appellate Division said that she had waived such a basis for challenging the award because she had continued participating in the arbitration proceeding “without objection."

* In addition to the grounds for vacating an arbitration award set out in CPLR Article 75, awards have been vacated by the courts based on a finding that the award violated a strong public policy.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02797.htm
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Parties directed to proceed to arbitration based on the court finding that its decision could not be made “without extensive fact-finding or legal analysis”

Parties directed to proceed to arbitration based on the court finding that its decision could not be made “without extensive fact-finding or legal analysis”
Matter of Newburgh v McGrane, 2011 NY Slip Op 02665, Appellate Division, Second Department

The City Council of the City of Newburgh passed a resolution reappointing Jean-Ann McGrane to the position of City Manager for the City of Newburgh for a three year period ending May 31, 2009. Subsequently the City and McGrane entered into an employment agreement consistent with that resolution passed by the City Council which provided that McGrane was entitled to severance pay and other benefits if the City terminated her employment.


In addition, the agreement set out a broad arbitration provision applicable to "[a]ll claims, disputes and other matters in question between the parties to this Agreement arising out of or relating to this Agreement or the breach thereof."
When the City Council passed a resolution dated January 12, 2009 terminating McGrane's employment as City Manager "effective immediately," McGrane filed a demand for arbitration seeking an award of her salary and all benefits pursuant to the employment agreement.

The City filed a petition seeking to vacate the demand for arbitration and permanently stay arbitration on the ground that the employment agreement was void as against public policy. The City contended that the agreement violated the “term limits rule” by binding the successor members of the City Council to a contract relating to the area of governance entered into by members of the predecessor City Council.

The Supreme Court denied the City’s petition, dismissed the proceeding, and directed the parties to proceed to arbitration.

The Appellate Division affirmed Supreme Court’s ruling, explaining tha:

Arbitration is favored in the State of New York as a means of resolving disputes, and courts interfere as little as possible with agreements to arbitrate.

1. "The courts may intervene in a dispute which the parties had agreed to arbitrate where the arbitrators could not grant any relief without violating public policy."

2. Where a court examines an arbitration agreement ". . . on its face and concludes that the granting of any relief would violate public policy without extensive fact-finding or legal analysis, [it] may then intervene and stay arbitration.";

3. Citing Matter of Karedes v Colella, 100 NY2d 45, the Appellate Division noted that "The term limits rule prohibits one municipal body from contractually binding its successors in areas relating to governance unless specifically authorized by statute or charter provisions to do so"; and

4. "An agreement that violates the term limits rule is against public policy (see Matter of City of Utica Urban Renewal Agency v Doyle, 66 AD3d 1495; Karedes v Village of Endicott, 297 AD2d 413, 415)."

In this instance the Appellate Division found that any determination as to whether an arbitrator could not grant any relief without violating public policy on the ground that the employment agreement violated the term limits rule could not be made at this stage in the proceeding without extensive fact-finding or legal analysis.

Accordingly, said the court, the Supreme Court properly denied the petition and dismissed the proceeding, directing the parties to proceed to arbitration.

The Appellate Division noted that in the event that the arbitrator's award violates public policy, the Supreme Court retained the power to vacate the award."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02665.htm
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Collateral Estoppel may bar a lawsuit involving essentially the same issues earlier adjudicated in a quasi-judicial administrative hearing

Collateral Estoppel may bar a lawsuit involving essentially the same issues earlier adjudicated in a quasi-judicial administrative hearing
Pisano v NYC Board of Education, 2002 WL 484305, [not selected for publication in the Official reports ], Affd. 303 A.D.2d 735

Sometimes an individual, unsuccessful in one lawsuit, will commence another legal action involving essentially the same issues and parties. However, applying the doctrine of collateral estoppel prevents a party from relitigating an issue which has already been decided by the courts involving the same parties and issues. The Pisano case involves such multiple litigations and illustrates how the court will apply the doctrine of collateral estoppel in case the subsequent litigation involves a challenge to an administrative determination.

In Abiele Contracting, Inc. v New York City School Construction Authority, 91 NY2d 1, the court held that the doctrine may apply to bar relitigating issues decided by administrative agencies if those decisions are "quasi-judicial" in nature. According to the ruling, an administrative agency is quasi-judicial in nature if it is given express statutory authority to act adjudicatively.

In contrast, if an agency only invokes its executive powers under the governing statute in making its determination, it is not exercising "quasi-judicial powers." In Venes v Community School Board, 43 NY2d 520, the Court of Appeals indicated that challenging the administrative agency's decision in court in situations where the agency did not arrive at its decision as a result of its acting in an adjudicative or judicial capacity would not be barred under the doctrine of collateral estoppel.

In this case, a State Supreme Court judge decided the doctrine prevented Sheila Pisano from pursuing this lawsuit against the New York City Board of Education.

This action arose after a medical arbitrator sustained the New York City Board of Education Medical Board's ruling that Pisano's absence from work did not result from her job-related injury. According to the record, Pisano had fallen at work on October 18, 1996. As a result of injuries she alleged she suffered because of her fall, Pisano did not return to work.

After receiving the Medical Board's determination, Pisano asked for, and was granted, an independent evaluation by a medical arbitrator accordance with the provision of the collective bargaining agreement between the United Federation of Teachers and the Board. She also authorized the Board of Education Medical Board to release her entire medical file to the medical arbitrator.

Dr. David Kaufman, the medical arbitrator, sustained the Medical Board's decision based on his medical examination of Pisano as well as a review of her available medical records and his conversations with Pisano's personal physician. Dr. Kaufman noted in his report that he had not reviewed all of Pisano's medical records because Pisano "failed to provide the Medical Board with this essential material." His conclusion: the Medical Board therefore acted correctly in not accepting the accident as being the cause of [Pisano's] absence from October 18, 1996 until the present" on the basis of the record before it.

Pisano challenged the arbitrator's determination pursuant to Article 75 of the Civil Practice Law and Rules. Her argument: the arbitrator's determination "was the result of misconduct by the Board and that the arbitrator failed to examine all of [her] medical records and thus did not conduct a thorough and exhaustive record."

A State Supreme Court justice dismissed Pisano's petition, ruling that the arbitration award was proper notwithstanding her allegations, as the award was "rational and unambiguous."

When Pisano filed second lawsuit based on the Medical Board's determination, the City asked the court to apply the doctrine of collateral estoppel and dismiss her petition. The court granted the City's motion, noting that the Medical Board is an agency within the meaning of 2 NYCRR 353, which provides for medical examinations, the creation of a medical board and the right to a hearing to challenge any adverse findings adopted by the Board.

The court said that "[t]hese procedures demonstrate that the determinations of these agencies are not merely the exercise of any rule-making or policy-making resolutions but are adjudications pursuant to their specific authority to actually decide cases. The court's conclusion: the Medical Board acted in a quasi-judicial capacity and its rulings bar any subsequent proceedings pursuant to the doctrine of collateral estoppel.

In addition, the court rejected Pisano's argument that "the arbitration award should be vacated since [she] was denied her Due Process at the arbitration hearing," noting that a Justice of the Supreme Court already ruled on "the propriety and manner of the arbitration proceeding and found that it fully conformed with the law." Thus, said the court, applying the doctrine of collateral estoppel in this action is appropriate.

The court also commented that "while the [Pisano] apparently did not appear with an attorney when she underwent her medical examinations, she was represented by the Union, which under a collective bargaining agreement with the Board, represents the interests of its members." In addition, said the court, "a party's election to appear without counsel will not invalidate the award of any part of the proceeding in which the right to counsel was not exercised."

New parking placard policies for the executive branch and Legislature

New parking placard policies for the executive branch and Legislature
Source: Office of the Governor

In response to State Inspector General Ellen Biben finding systemic problems with how parking placards were distributed and how they were used by some state employees, Governor Cuomo set new rigorous new policies for state issued parking placards.

Currently, the state distributes two types of parking placards. One says "police" in all capital letters, the other says "official business."

The new parking placard policies for the executive branch and Legislature provide that:

1. State officials are required to fill out a form before receiving the placard indicating why the placard is needed and what vehicle it will be used in.


2. State officials are required to sign a certification acknowledging the proper use of a placard.

3. The Executive Chamber is recalling all outstanding "Police" placards so they can be redistributed to police personnel only.

4. State officials without police powers will be issued "Official Business" placards.

5.The State Police will review and distribute all "Police" placards.

6. The Governor's Office of Public Safety will review and distribute all "Official Business" placards.

7. Agencies will review requests by employees to ensure that their duties and responsibilities would require the use of a placard.

8. Complaints of improper use of "Police" placards will be handled by State Police.

9. Complaints of improper use of "Official Business" placards will be handled by the Inspector General's office. 

10. An employee who misuses the placard could face disciplinary action.

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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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