Disciplinary hearings involving police officers are open to the public

Disciplinary hearings involving police officers are open to the public 

Matter of Doe v City of Schenectady, 2011 NY Slip Op 03694, Appellate Division, Third Department

The City of Schenectady appealed an order and judgment of the Supreme Court Judge Barry Kramer that among other things, ”permanently enjoined” Schenectady from permitting the public to attend disciplinary hearings involving City of Schenectady police officers.* 

In response to Schenectady’s Public Safety Commissioner Wayne E. Bennett advising the City Council of his plan to modify the City's police disciplinary process notwithstanding the disciplinary procedures set out in the collective bargaining agreement between the City and the Schenectady Police Benevolent Association (SPBA), SPBA filed an improper practice charge against the City with the Public Employment Relations Board (PERB).

The City filed its own improper practice charge against SPBA with PERB, asserting, that SPBA had impermissibly sought to negotiate disciplinary proceedings, which the City contended was a prohibited subject of collective bargaining.

Bennett issued a general order setting out the new disciplinary proceedings policy providing, among other things, that such proceedings would in the future be governed by Second Class Cities Law §137, pursuant to which Bennett would be the sole trier of fact and the formerly-confidential disciplinary hearings would be open to the public.

Subsequently SPBA filed an amended improper practice charge alleging that the parties' collective bargaining agreement governed disciplinary procedures and could not be unilaterally modified by respondents.

While the City's and SPBA's charges were pending before PERB, two police officers, James Roe and John Doe, were each served with a notice of discipline and advised that, pursuant to Second Class Cities Law §137, the City would be conducting public hearings with respect to those disciplinary charges. SPBA’s petition set out two causes of action:

1. Pursuant to Civil Rights Law §50-a and Public Officers Law Article 6-A, Roe and Doe were entitled to declaratory relief in that police disciplinary hearings must be confidential; and

2. The City’s "unilateral use of public hearings . . . in connection with [police] disciplinary proceedings [was] in excess of [the City’s] jurisdiction, illegal and contrary to law, in violation of lawful procedure and the [D]ue [P]rocess [C]lauses of the State and Federal Constitutions and [was] arbitrary, capricious and an abuse of discretion."

Ultimately Supreme Court ruled that Civil Rights Law §50-a superseded Second Class Cities Law §137 and that the legislative intent of §50-a would be thwarted by public disciplinary hearings.

The Appellate Division, in vacating Judge Kremer’s ruling, said that “individual police officers possess no private right of action for claimed violations of Civil Rights Law §50-a and for this reason alone the petition/complaint should have been dismissed to that extent.

Commenting that §50-a provided an exemption of document that might otherwise be disclosed pursuant to Freedom of Information Law (Article 6, Public Officers Law) but noting in that section “mentions the word disciplinary hearing, let alone requires that such hearings be held in private and we discern no import from this omission other than the obvious — that the failure of the Legislature to include it within the statute is an indication that its exclusion was intended.”

Citing Capital Newspapers Div. of Hearst Corp. v Burns, 109 AD2d 92, affd 67 NY2d 562, the Appellate Division said that the legislative history of §50-a indicates that the "statute was intended to apply to situations where a party to an underlying criminal or civil action is seeking documents in a police officer's personnel file, and was apparently designed to prevent 'fishing expeditions' to find material to use in cross-examination."

Concluding that SPBA failed to state a cause of action or legally cognizable claim, the Appellate Division said that “Supreme Court erred in denying [Schenectady’s] cross motion for dismissal of the petition/complaint.

The court, however, declined to divest PERB of its exclusive jurisdiction over the improper practice charges, including whether police disciplinary matters are a prohibited subject of negotiations.

On this last point, it could be argued that negotiating alternative disciplinary procedures to those provided by law is a permissive rather than a mandatory subject for collective bargaining.

Civil Service Law §76.4, provides: 4. Nothing contained in section seventy-five or seventy-six of this   chapter shall be construed to repeal or modify any general, special or   local law or charter provision relating to the removal or suspension of   officers or employees in the competitive class of the civil service of   the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state** and an employee organization pursuant to article fourteen of this chapter. [Emphasis supplied] Where such sections are so supplemented, modified or replaced, any   employee against whom charges have been preferred prior to the effective   date of such supplementation, modification or replacement shall continue   to be subject to the provisions of such sections as in effect on the   date such charges were preferred.

Accordingly, the use of the word “may” suggests that either party negotiating a collective bargaining agreement could decline to negotiate an alternative to a statutory disciplinary procedure but may elect to do so, making any demand for an alternative to a statutory disciplinary procedure a permissive subject of collective bargaining within the meaning of the Taylor Law.

* In a disciplinary action taken against an employee pursuant to Section 75 of the Civil Service Law the court ruled that the hearing could not be closed to the public unless the accused employee agrees or requests that the proceedings be held privately [See 74 Misc.2d 315]. With respect to disciplinary procedures initiated pursuant to §3020-a of the Education Law, 8 NYCRR 82-1.9, “Demand for public hearing,” provides that [u]nless the employee notifies the hearing officer at least 24 hours before the first day of the hearing that he or she demands a public hearing, the hearing shall be private. The prehearing conference shall be private.” §3020-a, however, is silent with respect to “a public hearing.” Presumably 8 NYCRR 82-1.9 was adopted pursuant to the authority vested in the Commissioner of Education by §3020-a.3.c, which provides that “The commissioner of education shall have the power to establish necessary rules and procedures for the conduct of hearings under [such] section.”

** Although it could be argued that the use of the word “State” limits the negotiation of alternative disciplinary procedures to the State and employee organizations representing State workers, in practice alternatives to statutory disciplinary procedures have been negotiated by political subdivisions of the State and employee organizations representing employees of such political subdivisions for decades.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03694.htm

The court’s fact-review power of an administrative agency's determination is limited to whether substantial evidence supports the determination

The court’s fact-review power of an administrative agency's determination is limited to whether substantial evidence supports the determination 

Matter of Jenkins v Israel, 2011 NY Slip Op 03604, Appellate Division, Second Department

The Westchester Medical Center filed disciplinary charges against Lisa Jenkins alleging insubordination and misconduct pursuant to §75 of the Civil Service Law. The disciplinary hearing officer found Jenkins guilty of the charges and Westchester adopted the hearing officer’s findings. It then imposed the penalty of dismissal and terminated her employment as a nursing aide.

In response to Jenkin’s appeal challenging her termination, the Appellate Division said that its fact-review powers of an administrative agency determination “are limited to whether substantial evidence supports the determination"

In this instance the court found that there was substantial evidence in the record to support a finding that Jenkins committed insubordination and misconduct.

Further, said the Appellate Division, “we cannot conclude that the penalty of dismissal imposed by the hospital was ‘so disproportionate to the offense as to be shocking to one's sense of fairness’ so as to constitute an abuse of discretion as a matter of law,” citing Matter of Kelly v Safir, 96 NY2d at 32.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03604.htm

Employee organization's duty of fair representation

Employee organization's duty of fair representation

Ayazi v United Federation of Teachers, 32 PERB 3069

From time to time, a member of a negotiating unit will file an unfair labor practice claim with PERB contending that his or her union has breached its duty of fair representation. The Ayazi decision by PERB sets out the standards used by PERB in resolving such claims.

Maryam J. Ayazi, a former teacher of English as a Second Language employed by the New York City School District’s Grover Cleveland High School, filed charges with PERB alleging that her union, the United Federation of Teachers [UFT]:

1. Failed to properly represent her by declining to appeal an adverse “probation discontinuance appeal hearing” that sustained her termination for unsatisfactory service effective June 1997.

2. Refused to file a grievance for back pay based on the school district’s refused to hire her as a full time teacher following her termination as a probationer.

UFT responded to the charges indicating that:

1. It declined to challenge Ayazi’s termination for unsatisfactory performance during her probationary period because “her appeal raised no legal issues;” and

2. It did not file a grievance seeking back pay because “it did not believe that the grievance would be successful.”

Citing CSEA v PERB, 132 AD2d 430, PERB said that “[i]n order to establish a claim for breach of the duty of fair representation against a union, there must be a showing that the activity, or lack thereof, which formed the basis of the charge against the union was deliberately invidious, arbitrary or founded in bad faith.”

In contrast, PERB said that there is no violation of Section 209-a.2(c) if the union’s action, or inaction, was caused by “an honest mistake resulting from misunderstanding” or its lack of familiarity with matters of procedure.

PERB sustained its administrative law judge’s decision dismissing Ayazi’s complaint, commenting that the fact that Ayazi disagreed with UFT’s position and believed that her probationary termination should have been further appealed “is not sufficient to establish a violation of the Act.”

Another element in this action was Ayazi’s allegation that UFT said that it would no longer represent her because she had filed the unfair labor practice charge.

UFT conceded that it had told Ayazi that it would not communicate with her about matters that were the subject of this improper practice charge. Ayazi, on the other had, admitted that “UFT has continued to communicate with her about matters unrelated to those that are subject to this proceeding.”

PERB said that under the circumstances UFT’s action, without more, did not rise to a level of a violation of the Act.