Petitioner alleging disparate treatment in violation of his or her Title VII civil rights has the initial burden of setting out a prima facie case of unlawful discrimination

Petitioner alleging disparate treatment in violation of his or her Title VII civil rights has the initial burden of setting out a prima facie case of unlawful discrimination

Wharff v State Univ. of New York, USCA, Second Circuit, 09-4534-cv

Wilfred Wharff alleged that SUNY refused to promote him from Lab Technologist to Assistant Supervisor because of his gender.

The Circuit Court said that Wharff’s disparate treatment claim pursuant to Title VII [42 USC § 2000e et seq.] was to be analyzed under the tripartite burden shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, whereby Wharff has the initial burden of establishing a prima facie case of unlawful discrimination.

Citing Malave v. Potter, 320 F.3d 321, the Circuit Court said that “To make out a prima facie case of disparate impact, a plaintiff must ‘(1) identify a policy or practice, (2) demonstrate that a disparity exists, and (3) establish a causal relationship between the two.’

If he is able to do so, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason" for its actions.”

Finding that Wharff offered no evidence that SUNY applied its promotion procedures unfairly, that the collective bargaining agreement's sanctioning of the alternate hiring process was negotiated as a pretext for sex discrimination, or that the selection of alternatives was intentionally manipulated to accomplish such discrimination, the Court dismissed his appeal.

Further, said the court, “Even assuming that this establishes a prima facie case of discrimination, SUNY has offered a legitimate, nondiscriminatory reason for its promotion decisions that Wharff has failed to rebut.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/8255044e-0961-4619-a312-4a2d3aa9000d/1/doc/
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Denying employee sick leave bank benefits results in charges of unlawful discrimination

Denying employee sick leave bank benefits results in charges of unlawful discrimination

Cheektowaga CSD v Graziadei, 267 AD2d 985, motion for leave to appeal denied, 95 NY2d 756

A sick leave bank was created by the Cheektowaga Central School District as required by the collective bargaining agreement between district and the Teachers’ Association. Under the terms of the agreement, sick leave bank time was available only to employees incapacitated by severe sickness or injury.

Kathryn A. O. Graziadei, a guidance counselor, had used up all of her sick leave credits after being absent for four weeks and two days following the birth of her child.

Graziadei requested approval to draw three days of sick leave from the sick leave bank. Her request was disapproved by the district because it found that Graziadei did not demonstrate that she was incapacitated by a severe sickness or injury.

Graziadei filed a complaint with the New York State Division of Human Rights alleging that the district had unlawfully discriminated against her because of her gender and a pregnancy-related disability. The district appealed the Division’s ruling that it had unlawfully discriminated against Graziadei.

In reviewing the district’s appeal, the Appellate Division found that Graziadei was entitled to take advantage of the sick leave bank to the same extent as employees who are incapacitated by a medical condition other than pregnancy and recovery from childbirth.

According to the decision, Graziadei failed to present any proof that she was incapacitated by severe sickness or injury, or that her request for leave bank time was treated in a manner less liberal than those applications from employees with conditions unrelated to pregnancy and recovery from childbirth. This omission proved fatal to the Division’s determination.

The Appellate Division annulled the Division’s determination that the district had unlawfully discriminated against Graziadei on the basis of sex and a pregnancy-related disability, holding that the Division’s decision was not supported by substantial evidence.

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Penalties imposed on police officers founds guilty of charges alleging wrongful arrest

Penalties imposed on police officers founds guilty of charges alleging wrongful arrest

Police Department v Popovic, NYC Office of Admin. Trials and Hearings, OATH Index No. 544/00

Administrative disciplinary charges may be filed against a police officer alleging that he or she made an arrest in bad faith. The Popovic decision lists some of the penalties recommended by New York City’s Office of Administrative Trials and Hearings where a police officer is found guilty of such charges.

Penalties for bad faith or retaliatory arrests range from 10 to 30 days, depending upon the degree of infringement of the civilian’s rights. Some examples follow:

1. Loss of 25 vacation days for bad faith arrest in retaliation for complainant’s vulgar retorts to the officers’ provocative behavior;

2. 30 days’ suspension and disciplinary probation for bad faith arrest and strip-search of a civilian;

3. Loss of 10 vacation days for bad faith arrest in retaliation for past incident of arrogance to officers and displaying a falsified license;

4. Loss of 15 vacation days for bad faith arrest following argument about a police report;

5. Loss of 13 vacation days for bad faith arrest after civilian attempted to record the police officer’s badge number.
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A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member

A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member

Matter of Powell and Elliott, Decisions of the Commissioner of Education, Decision 16,216

Willa Powell, a member of the Board of Education of the Rochester City School District asked the Commissioner to remove another member of the board, Cynthia Elliott, alleging that Elliott had “willful and substantive disclosure of confidential information” acquired in the course of her official duties to a newspaper.

The Commissioner denied Powell’s application.

The Commissioner explained that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

To be considered willful, the actions of the individual must have been intentional and with a wrongful purpose.

Here, said the Commissioner, Powell had not met her burden of proving that Elliott had engaged in behavior constituting a willful violation or neglect of duty requiring her removal from office to his satisfaction. As to the evidence advanced by Powell, the Commissioner ruled that the fact that the draft report released to the media “contains a code linked back to the copy intended for [Elliott], does not in itself prove that [Elliott] released it, much less that she intentionally released it.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume50/d16216.htm

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode”

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode”
Matter of Gigliotti v Bianco, 2011 NY Slip Op 02206, Appellate Division, Fourth Department

The City of Niagara Falls School District terminated the employment of Vincent F. Gigliotti on the grounds that he failed to comply with the District's residency policy, which requires District employees to be domiciliaries of the City of Niagara Falls. Supreme Court properly granted the petition.

It is well established that "domicile means living in [a] locality with intent to make it a fixed and permanent home." As the Court of Appeals said in Matter of Newcomb, 192 NY 238, "For a change to a new domicile to be effected, there must be a union of residence in fact and an absolute and fixed intention to abandon the former and make the new locality a fixed and permanent home."

An individual may have but one domicile at time, i.e., his or her permanent place of abode, which continues until he or she has acquired a new one and any party alleging a change in an individual’s domicile “has the burden to prove the change by clear and convincing evidence."

In contrast, an individual may have multiple places of residence simultaneously, i.e., two or more residences in the same or at different geographical locations in which he or she may, from time to time, live, but only one such residence is his or her domicile.

According to the decision, the Gigliotti, a lifelong resident of Niagara Falls, divorced and while he was temporarily laid off from his position, remarried. Gigliotti and his wife, who owned a home in Ransomville New York, agreed that Gigliotti would continue to live in Niagara Falls with his ailing mother while his spouse would continue to live in her home in Ransomville.

The evidence considered by the Appellate Division in determining Gigliotti’s domicile included Gigliotti’s listing his Niagara Falls address on his federal income tax return forms, his New York State driver's license, his marriage certificate, and his bank and credit statements. In addition, the court noted that Gigliotti’s personal belonging remained at his residence in Niagara Falls, “although he keeps a set of golf clubs and some clothing at his wife's residence in Ransomville.”

The Appellate Division, after considering the evidence, determined that the District’s conclusion that Gigliotti had changed his domicile from Niagara Falls to Ransomville was arbitrary and capricious.

Significantly, the court commented that although the District did not conduct a hearing before terminating Gigliotti’s employment, such a hearing was not "required by statute or law," citing Colton v Berman, 21 NY2d 322 Assuming that the District had provided Gigliotti with an opportunity to show that he or she satisfied the District’s requirement regarding domicile, the problem here was that the court disagreed with the District’s conclusion that Gigliotti was not domiciled in Niagara Falls.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02206.htm
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Protected speech vs. whistle blowing

Protected speech vs. whistle blowing

Ringle v Onondaga County, 267 AD2d 1088

The Ringle decision by the Appellate Division, Fourth Department, addresses a number of important issues concerning the limits, if any, on the right of a public employee to publicly “to blow the whistle” on his or her employer.

The court’s conclusion: a public employee’s right to “blow the whistle” on his or her employer of his or her superiors is not absolute.

David Ringle and William R. Sawyer sued Onondaga County, contending that the county had retaliated against them for “whistle blowing” in violation of (1) their Constitutional right to free speech and (2) Section 75-b of the Civil Service Law.

Both Ringle and Sawyer alleged that they were unlawfully dismissed or constructively discharged from their positions as a result of their communicating with other government agencies and the media concerning alleged inappropriate activities in the Onondaga County Laboratory (OCL) and Medical Examiner’s Office (MEO) and inappropriate conduct by their supervisor, the Onondaga County Medical Examiner.

Constitutionally protected rights

The Appellate Division first considered the Constitutional free speech and civil rights claims under 42 US 1983 advanced by Ringle and Sawyer.

After noting that “it is well established that a governmental entity may not discharge or retaliate against an employee based on that employee’s exercise of the right of free speech,” the Appellate Division pointed out that:

1. The “Pickering test” [Pickering v Board of Education, 391 US 563] is used to determine if a public employee has been unlawfully dismissed from his or her employment for “engaging in speech.” This test balances the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in providing efficient service to the public.

2. Consideration must be given to whether the speech to which the employer objects “impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise”

3. The greater a “confidential relationship” and the “policymaking function” of the speaker, the greater the State’s interest in terminating the employee for expressions against the employer’s interests and the lesser the employee’s First Amendment rights.

According to the decision, Ringle’s and Sawyer’s comments concerning “mismanagement by the Medical Examiner and inappropriate activities in the OCL and MEO may fairly be categorized as a matter of public concern.”

The Appellate Division, however, found that both Ringle and Sawyer held positions requiring confidentiality and which involved policymaking and public contact, elements that the court determined to be mitigating factors insofar as their free speech rights were concerned.

The court concluded that given their job responsibilities, “[c]ommon sense tells us that the expressive activities of [such] highly placed supervisory, confidential, policymaking, or advisory employee[s] will be more disruptive to the operation of the workplace than similar activity by a low level employee with little authority or discretion.”

The Appellate Division held that the record established that the comments made by Ringle and Sawyer were disruptive to the operation of the workplace, created disharmony among co-workers, interfered with their working relationships with their supervisor, and affected the performance of their duties.

Given these circumstances, the court said that it concluded that terminating Ringle and Sawyer, even in retaliation for their comments to the media and other government agencies concerning the operation of the OCL and MEO, did not violate their First Amendment rights or their civil rights under 42 USC 1983.

Civil Service Law Section 75-b whistle blowing claims

In determining Ringle’s and Sawyer’s rights under Section 75-b of the Civil Service Law, different considerations were found to be controlling.

First, the Appellate Division said that lawsuits under Section 75-b sought to vindicate personal rights in contrast to efforts to vindicate a public interest.

Section 75-b prohibits a public employer from retaliating against a public employee who “blows the whistle.” Subdivision 2(a) states that a public employer shall not dismiss or take other disciplinary or other adverse personnel action involving an individual’s public employment who discloses information to a governmental body involving a threat to public health or constitutes improper governmental action.

Alleged violations of Section 75-b are typically challenged by the individual bringing an Article 78 action [Article 78, Civil Practice Law and Rules.]. In filing such a petition, said Appellate Division, the individual seeks to vindicate a private rather than a public right. What private right? The right not to be dismissed or otherwise subjected to reprisals because of his or her disclosures to other governmental agencies of the media.

This conclusion meant that both Ringle and Sawyer had fallen into a procedural trap.

The Appellate Division said that because the “Civil Service Law Section 75-b causes of action they brought sought to vindicate only the individual interests of Ringle and Sawyer, ... they were properly dismissed by the lower court because Ringle and Sawyer failed to file a notice of claim as required by Section 50-a of the General Municipal Law Section and Section 52 of the County Law.*

In addition, the court pointed out that Section 75-b does not serve as a shield against disciplinary action being taken against an employee where there is a “separate and independent basis” for discipline the individual.

Finally, the Appellate Division observed that “by commencing actions pursuant to Civil Service Law Section 75-b, Ringle and Sawyer are barred from asserting any other State law cause of action related to the alleged retaliatory discharges.”

* This ruling implies that where an individual sues a school district or BOCES claiming he or she was dismissed or subjected to punitive action in violation of Section 75-b, he or she must file a notice of claim in accordance with Section 3813(1) of the Education Law.

Reassigning a teacher to non-teaching duties

Reassigning a teacher to non-teaching duties

Taylor v Hammondsport CSD, 267 AD2d 987

May a school district assign a teacher to perform non-teaching duties against his or her will? This was the issue raised by David C. Taylor, a tenured high school science teacher.

The Hammondsport Central School District had assigned Taylor to perform nonteaching duties after he was found guilty of a number of specifications set out in disciplinary charges filed against him pursuant to Section 3020-a of the Education Law.

The hearing officer found Taylor guilty of portions of two charges filed against him. The penalty imposed: a $1,000 fine. However, the hearing officer in setting the penalty to be imposed did not provide for any remedial action.*

Taylor objected to his reassignment to non-teaching duties, contending that the assignment to such duties constitutes the imposition of an additional penalty or remedial action in violation of Education Law Section 3020-a. He challenged his reassignment, demanding that he be reinstated to his former teaching assignment and compensated for emotional distress he has endured as the result of district’s assigning him to nonteaching duties.

A State Supreme Court judge dismissed Taylor’s petition on the ground that he did not have any “clear legal right to the relief sought against [district], and therefore [an order in the nature of] mandamus* was not available to him as a remedy.”

The Appellate Division agreed with the lower court, pointing out that Section 3020-a “neither limits the authority of [the district] to assign [Taylor] to nonteaching duties nor requires [the district] to restore [Taylor] to his teaching duties following the completion of disciplinary procedures conducted pursuant to the statute.”

Addressing a procedural issue, the Appellate Division ruled that Taylor was required to give the district a notice of claim as required by Section 3813(1) of the Education Law prior to his commencing litigation.

The court said that in this instance complying with Section 3813 (1) was a statutory condition precedent to bringing an action or proceeding against the district because Taylor was attempting to vindicate his private rights. Accordingly, he was not exempt from the notice of claim requirement set out in the Education Law as might be the case were he attempting to vindicate a public interest in contrast to a personal one.

* Education Law Section 3020-a.4, in pertinent part, provides: …. In addition to or in lieu of the aforementioned penalties, the hearing officer, where he or she deems appropriate, may impose upon the employee remedial action including but not limited to leaves of absence with or without pay, continuing education and/or study, a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions.

** Latin for "we order." Mandamus is one of a number of ancient “writs.” In modern legal practice it describes a court order directing a governmental entity [or official] to perform an act required by law when it has neglected or refused to do.
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Disciplinary penalty set out in a consent award agreed to in the course of disciplinary arbitration not within the power of a subsequent arbitrator to modify

Disciplinary penalty set out in a consent award agreed to in the course of disciplinary arbitration not within the power of a subsequent arbitrator to modify
In the Matter of Saderia Burke v Nassau Health Care Corporation, 2011 NY Slip Op 02887, Appellate Division, Second Department

This decision addressed two proceedings involving Saderia Burke’s arbitration award. Burke, a member of the Civil Service Employees Association, Inc.

In the course of a disciplinary proceeding Burke and the Nassau Health Care Corporation entered into a "Consent Award" that was "so-ordered" by the arbitrator. The Award provided that Burke would be terminated if she committed certain disciplinary infractions within an agreed period.

Subsequently Health Care served a “notice of termination” on Burke after she allegedly committed “certain infractions.” CSEA filed another grievance and demand for arbitration.

After this second hearing, the arbitrator found that Burke, indeed, had committed infractions that would result in termination in accordance with the Consent Award. The arbitrator, however, issued an award imposing a penalty of suspension rather than termination.

Health Care filed an Article 75 petition seeking to vacate the award while CSEA filed an Article 75 petition seeking to confirm the award.

Supreme Court denied Health Care’s petition, granting so much of the arbitration award as imposed a penalty of suspension without pay on Burke.

The Appellate Division reversed the Supreme Court’s decision, and vacated the penalty of suspension without pay awarded by the arbitrator, explaining that courts may vacate an arbitration award if the award "violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Matter of Falzone, 15 NY3d 530.

An arbitrator, said the court, may properly modify a prior arbitration award only to:

1. Correct a miscalculation or mistaken description in the prior award:

2. To correct so much of the prior award as was rendered on a matter not submitted to the arbitrator and which can be corrected without affecting the merits of the decision; or

3. To correct a prior award that is "imperfect in a matter of form."

In this instance the Appellate Division found that the arbitrator had exceeded his authority by determining an issue “not submitted to him.” Further, he ruled on an issue had been resolved via a “consent award” in a prior arbitration involving Burke, the penalty to be imposed for any other “certain” disciplinary infraction.

In view of this, ruled the Appellate Division, Supreme Court should have modified so much of the arbitrator's award as imposed a penalty of suspension without pay and reinstated the penalty of termination.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02887.htm

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Termination of employment recommended as the penalty for failure to follow proper procedure in safeguarding the property of an agency client

Termination of employment recommended as the penalty for failure to follow proper procedure in safeguarding the property of an agency client

NYC Human Resources v Townsend, OATH Index #1325/11

A NYC Human Resources Administration client was arrested and Marvin Townsend, a supervising special officer, was assigned to process the arrest.

The client had a jacket with a Portable Sony Playstation (PSP) and wallet, in the pocket.

Townsend told the client he would not voucher the property and that she could get it from his office on the next day.

When the client retrieved the jacket, the PSP and wallet were missing. The PSP was subsequently returned to the client but the wallet was not.

ALJ Alessandra Zorgniotti found that the sergeant failed to follow vouchering procedures and attempted to cover up his actions and deceive the client. The Administrative Law Judge recommended that Townsend be terminated from his position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1325.pdf
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Temporary appointees not entitled to a pretermination due process hearing

Temporary appointees not entitled to a pretermination due process hearing

Sanni v NYS Office of Mental Health, USDC, EDNY, 2/15/2000

Frequently a public employee holding a temporary appointment will challenge his or her termination from the position claiming that he or she is entitled to a pretermination due process hearing. This was one of the issues considered by Federal District Court Judge Gleeson in the course of his deciding the Sanni case.

Thomas Sanni, then employed in a grade 27 project director position at Kings Park Psychiatric Center, was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. Simultaneously, he was reinstated to his permanent grade 18 position and transferred to Queens Children Psychiatric Center.

Ultimately, arbitrator Howard A. Rubenstein found Sanni guilty of 11 of the 14 charges filed against him. Among the charges for which Sanni was found guilty were the following:

1. Improperly participating in and supporting the decision to employ the minister of [Sanni’s] church to exorcise a patient possessed by spirits;

2. Transporting a patient in his car when he did not hold a valid driver’s license;

3. Claiming overtime for work he did not perform;

4. Having his personal automobile repaired by Kingsboro and billing the facility for personal items he shipped overseas via international Federal Express; and

5. Lying under oath in the course of being interviewed concerning the charges.

The department accepted Rubenstein’s findings and his recommendation that Sanni be terminated. Sanni sued, contending that the Office of Mental Health’s disciplinary action against him (1) violated his civil rights, (2) constituted retaliation for his filing a Title VII complaint against it and (3) it terminated him from the grade 27 position in violation of Section 75.

As to Sanni’s due process claims, Judge Gleeson pointed out that a public employee who has a property interest or right in his or her position is entitled to a pretermination hearing before he or she may be removed from the position. By logical extension, said the court, an employee covered by Section 75 has a property interest in his or her civil service grade since one of the penalties that may be imposed under Section 75 is demotion in grade and title.

The problem with Sanni’s argument, however, was that temporary employees in New York have no property interest in their jobs. Accordingly, Judge Gleeson, citing the Appellate Division’s ruling in Jones v Westchester County, 644 NY2d 640, granted the State’s motion to summarily dismiss this branch of Sanni’s complaint.

Sanni’s civil rights and retaliation claims based on his demotion and transfer to another department facility survived, however.

This suggests that in such situations the State may attempt to have the case dismissed on the grounds that it immune from suit in federal court for alleged violations of Title VII in view of the rulings by the Supreme Court of the United States in Kimel v Board of Regents, 528 U.S. 62 and Alden v Maine, 527 U.S. 706, cases involving employees suing their state employer in federal court for alleged violations of, respectively, the Age Discrimination in Employment Act and the Fair Labor Standards Act.

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Civil Service Commission's refusal to extend an eligible list challenged

Civil Service Commission's refusal to extend an eligible list challenged

Matter of Kapetanos v City of New York,  37 AD3d 279

Christopher Kapetanos challenged the New York City Civil Service Commission’s decision not to extend the duration of a 2000 eligible list for the civil service position of Associate Fraud Investigator. The decision notes that Kapetanos did not plead, even in conclusory fashion, that the restriction triggering the Commission’s ability to exercise its Civil Service Law Section 56.1 discretion to extend the eligible list was attributable to a financial emergency.

Section 56.1 addresses extending eligible lists in situations involving restriction against the filling of vacancies. It provides that:

The duration of an eligible list shall be fixed at not less than one nor more than four years; provided that, except for lists promulgated for police officer positions in jurisdictions other than the city of New York, in the event that a restriction against the filling of vacancies exists in any jurisdiction, the state civil service department or municipal commission having jurisdiction shall, in the discretion of the department or commission, extend the duration of any eligible list for a period equal to the length of such restriction against the filling of vacancies.

Restriction against the filling of vacancies shall mean any policy, whether by executive order or otherwise, which, because of a financial emergency, prevents or limits the filling of vacancies in a title for which a list has been promulgated. An eligible list that has been in existence for one year or more shall terminate upon the establishment of an appropriate new list, unless otherwise prescribed by the state civil service department or municipal commission having jurisdiction.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/extension-of-eligible-list.html

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Work related investigations

Work related investigations

Cerrone v Cahill, USDC, NDNY, 84 F. Supp. 2d 330

An investigation is being conducted by the appointing authority concerning alleged misconduct by an employee.

1. Do the same rules that apply when the appointing authority conducts an investigation involving alleged work-related misconduct control when the appointing authority is investigating alleged off-duty misconduct?

2. Is there any difference between an investigation by an appointing authority for the purpose of filing administrative disciplinary charges against an employee and its investigation directed towards bringing criminal charges against the individual?

As the Cerrone case demonstrates, if the focus of the investigation is criminal rather than administrative, different rules and safeguards control.

State Police Sergeant Thomas Cerrone filed a law suit in federal district court contending that his Fourth Amendment rights were violated in the course of his being investigated concerning “some sort of cover-up” related to his role in an investigation of a hit and run accident that occurred on April 3, 1993.

According to the decision, Cerrone reviewed and signed an accident report prepared by Trooper Robert Gregory that was alleged to be facially insufficient and contained false information. Sometime later, a letter signed by Ed Scott stating that Rory Knapp, the brother of State Trooper Timothy Knapp, left the scene of an accident on April 3, 1993 was received by the Division of State Police. Ed Scott denied writing the letter and the letter writer was never positively identified.

On January 19, 1995, Cerrone was stopped by investigators, placed in an unmarked police car and taken to a hotel for questioning about the hit and run incident.

Cerrone was given a Miranda warning and advised that he was the target of a criminal investigation. The investigators did not have a warrant for their action. After being questioned for six hours, Cerrone was permitted to leave when he agreed to take a polygraph test.

One of the recognized exceptions to the prohibition against warrant less searches and seizures is work-related investigations. Cerrone argued that in this case, the investigation was criminal rather than work related and thus he was entitled to the protections of the Fourth Amendment against unreasonable searches and seizures.

Noting that the procedures governing administrative investigations set out in the applicable Taylor Law agreement were not implemented in the course of Cerrone’s interrogation, Judge Thomas J. McAvoy agreed that the basic purpose of the investigation was criminal rather than administrative in nature.

The court said that the distinction between searches and seizures for the purpose of criminal prosecution and those undertaken for work related or administrative purposes is critical and many courts upholding a standard lower than probable cause [in work related investigations] have recognized that the lower standard is not appropriate in the criminal arena.

Thus, observed Judge McAvoy, if Cerrone was seized or arrested without probable cause, his Fourth Amendment rights were violated. The court also noted that the available evidence prior to Cerrone’s being questioned revealed little linking him, as opposed to other officers, to the alleged cover-up.

The decision sets out the following basic principles to be followed in investigation of employee misconduct:

1. Where a search or seizure is conducted by a government employer to further a criminal investigation, the traditional requirement of probable cause is necessary and the individual is protected by the Fourth Amendment.

2. Government employers cannot avoid the traditional Fourth Amendment safeguards applicable in the context of criminal investigations simply by labeling a criminal search work-related.

Law enforcement agencies may have greater difficulty here than other government employers. Typically, a non-law enforcement agency’s investigation of alleged misconduct looks towards filing administrative disciplinary charges against an individual. As the court ruled in Biehunik v Felicetta, 441 F.2d 228, Fourth Amendment rights do not apply in investigations of work-related misconduct.

In contrast, the very nature of investigations by law enforcement agencies of its personnel often tends to blur the line between administrative investigation for the purpose of initiating administrative disciplinary action and an investigation of the same or a related incident for the purpose of bring criminal charges against the individual. Accordingly, the distinctions identified by Judge McAvoy in the Cerrone case should be kept in mind when investigations into alleged employee misconduct are initiated by a law enforcement agency.

However, in Dombrowski v Safir, decided by the Appellate Division, First Department, 269 AD2d 161, the court upheld the termination of New York City police officer Kenneth J. Dombrowski as a result of his refusal to answer questions directly and narrowly relating to his official duties.

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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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New York State's Banking and Insurance Departments to be consolidated into a new Department of Financial Services effective October 3, 2011

New York State's Banking and Insurance Departments to be consolidated into a new Department of Financial Services effective October 3, 2011

Source: Bond, Schoeneck & King, PLPC

As part of the approval of the budget bill on March 31, Governor Andrew M. Cuomo signed into law Chapter 62 of the Laws of 2011 which consolidates the Banking Department and the Insurance Department into a new Department of Financial Services*.

BSK reports that:

“The new law consolidates the Banking and Insurance Departments to establish the Department of Financial Services, which will have a Banking Division and an Insurance Division.

"There will be a Superintendent of Financial Services appointed by the Governor, by and with the consent of the Senate, and who shall hold office at the pleasure of the Governor. The Superintendent of Financial Services is granted enforcement and regulatory authority over financial products and services. The Superintendent of Financial Services shall appoint a Deputy Superintendent who shall be the head of the Banking Division and a Deputy Superintendent who shall be the head of the Insurance Division.

"The Superintendent of Financial Services may remove at will any Deputy Superintendent, except as may be otherwise provided by the New York Civil Service Law.”

* Article V,  §2 of the State's Constitution provides that "There shall be not more than twenty civil departments in the state government, including those referred to in this constitution. The legislature may by law change the names of the departments referred to in this constitution." §3 of Article V of the Constitution provides that." Subject to the limitations contained in this constitution, the legislature may from time to time assign by law new powers and functions to departments, officers, boards, commissions or executive offices of the governor, and increase, modify or diminish their powers and functions. Nothing contained in this article shall prevent the legislature from creating temporary commissions for special purposes or executive offices of the governor and from reducing the number of departments as provided for in this article, by consolidation or otherwise."

Bond, Schoeneck & King’s report concerning this change is posted on the Internet at:

http://www.bsk.com/archives/detail.cfm?archive=publication&ID=1286
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Eligibility for General Municipal Law §207-a benefits and for Workers’ Compensation Benefits are not linked and are to be determined on their own merits

Eligibility for General Municipal Law §207-a benefits and for Workers’ Compensation Benefits are not linked and are to be determined on their own merits
Matter of Davidson v LaGrange Fire District, 2011 NY Slip Op 02666, Appellate Division, Second Department

Deborah A. Davidson filed and Article 78 action “in the nature of mandamus,” seeking an order to compel the LaGrange Fire District to make a final determination regarding her application for medical benefits under General Municipal Law §207-a.

Davidson has sustained an injury on a fire call and the Fire District awarded her salary benefits pursuant to General Municipal Law §207-a. However, Davidson had also asked for certain medical benefits related to her work-connected injury that had been denied by the New York State Insurance Fund, the Fire Districts workers' compensation insurance carrier.

An administrative law judge for the Workers’ Compensation Board had ruled that the State Insurance Fund was liable for the full cost of the Davidson’s surgery but the Fund had filed an application seeking a review by the Workers’ Compensation Appeals Board.

Before a decision was issued by the Board, Davidson filed her CPLR Article 78 petition. The petition, among other things, sought an order in the nature of mandamus, in effect, to compel the respondents to issue a final determination as to the her request for medical benefits under General Municipal Law §207-a.

Supreme Court denied Davidson’s petition ruling that it was premature as she had not exhausted her administrative remedies before the New York State Workers' Compensation Board concerning her claims. The Appellate Division reversed the lower court’s ruling.

The Appellate Division explained that in the event an officer or agency fails or refuses to conduct a hearing or decide a particular matter where there was a mandatory, nondiscretionary duty to do so, mandamus is appropriate to compel performance of the required duty.

Davidson argued that although the Fire District had made a determination that she is entitled to receive benefits under General Municipal Law §207-a, had not made a determination regarding coverage under General Municipal Law §207-a for her medical expenses.

As a determination by the WCB regarding workers' compensation benefits, and a determination by a municipal employer regarding statutory benefits pursuant to General Municipal Law §207-a, are separate and distinct matters, which the Court of Appeals had made clear in Matter of Balcerak v County of Nassau (94 NY2d 253), “[a] municipality's obligation to pay wages and medical costs under General Municipal Law §207-a or § 207-c is in no way dependent upon any determination made by the WCB.”

In the words of the Appellate Division, quoting Balcerak, "the eligibility determinations for these distinct types of statutory benefits" must "stand and be resolved essentially on their own merits."*

Here, any workers' compensation remedies that may have been available to Davidson were separate from and independent of her request that Fire District provide coverage for the full cost of medial expenses pursuant to General Municipal Law §207-a. Accordingly, said the court, she was not required to exhaust her administrative remedies in the workers' compensation proceeding before pursuing this CPLR Article 78 proceeding against the Fire District.

The matter was remanded to Supreme Court for further proceedings on Davidson’s petition, “and a new determination thereafter.”

* In Balcerak the Court of Appeals held that a determination by the WCB that an injury is work-related does not, by operation of collateral estoppel, automatically entitle an injured employee to benefits under General Municipal Law §207-c [which applies to law enforcement personnel], which ruling presumably would be controlling in a GML §207-a case [which applies to firefighting personnel].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02666.htm
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Where a collective bargaining agreement sets out a “board agreement to arbitrate,” the arbitrator, rather than the court, is to determine if the grievance is subject to arbitration

Where a collective bargaining agreement sets out a “board agreement to arbitrate,” the arbitrator, rather than the court, is to determine if the grievance is subject to arbitration

Matter of City of Binghamton v Binghamton Police Benevolent Assn., Inc., 2011 NY Slip Op 02109, Appellate Division, Third Department

When the Binghamton chief of police instituted new rules concerning the use of sick leave and subsequently counseled a police officer about an alleged pattern of suspected sick leave abuse and the need to provide a physician’s notes for all future sick leave absences, the Police Benevolent Association filed a grievance alleging a violation of the collective bargaining agreement between the Association and the City. In addition, the Association contended that the new policy constituted “departure from past practices.”

The grievance was denied by both the police chief and a representative of the mayor. The City, in response to the Association demand to submit the grievance to arbitration, filed a petition pursuant to Article 75 of the CPLR seeking a stay of arbitration. Supreme Court denied the petition and the City appealed.

The Appellate Division affirmed the Supreme Court’s determination, noting that the sole issue to be resolved was whether the parties to the CBA agreed to refer disputes in this specific area to arbitration.

In such situation, said the Appellate Division, courts "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

As the parties' broad agreement to arbitrate provided that "[a]ny grievance or dispute which may arise between the parties involving the application, meaning, or interpretation of this [a]greement," the Appellate Division ruled that the subject matter of the dispute bears a reasonable relationship to the articulated contract provisions and, therefore, it is for an arbitrator to decide in the first instance whether the precise scope of those provisions covers the issues presented in the Association’s grievance.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02109.htm

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Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law

Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law

Department of Corrections v Johnson, OATH Index #1303/11

A New York City correction officer who tested positive for illegal drugs argued that the results were obtained in violation of her union and privacy rights. In essence, the officer challenged the legality of a second drug test administered to her after she tested positive in an earlier test on the grounds that the test violated the office’s right to union representation under §75 of the Civil Service Law and her right to be free from unreasonable searches under the Fourth Amendment.

OATH Administrative Law Judge John Spooner rejected the correction officer’s theory and found that the tests had been properly conducted.

Significantly, Judge Spooner found that the procedure did not involve questioning of the officer by a supervisor or anyone else. Rather Johnson was ordered by a captain to report to the toxicology unit and there was directed to provide a hair sample by a civilian staff member. Because the test did not involve questioning, no written notice of a right to union representation was required under Civil Service Law §75(2).

The ALJ recommended that Johnson’s employment be terminated.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1303.pdf

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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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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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