Demonstrating a party's failure to negotiate in good faith

Demonstrating a party's failure to negotiate in good faith
Public Employees Federation and Roswell Park Cancer Institute, 34 PERB 3040

An employee organization must show that the employer, in exercising its management prerogatives, violated the parties' memorandum of understanding in order to prove that the employer's actions constituted a refusal to negotiate in good faith in violation of Civil Service Law Section 209-a1(d).

Counseling memoranda may constitute disciplinary action when coupled with more than "job-related feedback"

Counseling memoranda may constitute disciplinary action when coupled with more than "job-related feedback"
Matter of Harper v New York State Off. of Mental Health, 12 Misc 3d 1197(A)

An employee received a “counseling memorandum” following an investigation of a complaint alleging sexual harassment filed against him by one of his subordinates.. The counseling memorandum, in part, issued by the New York State Office of Mental Health stated:

“This Memorandum serves as a written counseling based on the Sexual Harassment complaint that was filed and investigated. You will be required to participate in Supervisory Training as well as Sexual Harassment Prevention Training in the near future."

A “counseling memorandum” issued to a permanent employee typically is not considered disciplinary action requiring “notice and hearing.” In this instance, however, the court ruled that the counseling memorandum given to Harper did, in fact, constitute a disciplinary action taken against him and thus was subject to the disciplinary grievance procedures set out in a collective bargaining agreement [CBA].

While the CBA specifically provided that “counseling is not discipline,” the court said that the counseling memorandum issued to Harper by his employer also requires that he attend Supervisory Training and Sexual Harassment Prevention Training,. This additional requirement extended beyond the mere "job-related feedback" referred to in the CBA and thus constituted disciplinary action within the meaning of the CBA. Accordingly, Harper was entitled to administrative due process in the form of a notice of discipline and a hearing.

Dismissal in consideration of the misconduct proven not viewed as "shocking"

Dismissal in consideration of the misconduct proven not viewed as "shocking"
Ortiz v Safir, App. Div., 1st Dept., February 5, 2002

The Appellate Division, First Department sustained New York City's for Police Commissioner Howard Safir's terminating police officer James Ortiz after finding Ortiz guilty of a number of charges of misconduct in the performance of his duties.

Applying the so-called "Pell Doctrine," [Pell v Board of Education, 34 NY2d 222], the court said that under the circumstances imposing the penalty of dismissal did not shock its sense of fairness.

Ortiz was found guilty of disciplinary charges that alleged that in the course of effecting an arrest of an individual for disorderly conduct, he "manhandled an unthreatening, nonresistant arrestee, shoved him down a subway stairway, flung his passport into his face, charged him with resisting arrest without probable cause and made false statements about the incident to the Civilian Complaint Review Board."

Disciplinary penalties imposed on public employees in New York State must meet the "Pell Doctrine." The standard applied: any permissible penalty may be imposed unless the court finds that under the circumstances such a penalty is "shocking to one's sense of fairness."

Typically an individual will appeal the disciplinary findings as to guilt as well as the penalty imposed. Once a court determines that the record supports a finding that the disciplinary determination was not arbitrary or illogical and that it is supported by substantial evidence, it will turn to the issue of whether the disciplinary penalty imposed should be upheld.

This is the point at which the court will apply the Pell Doctrine. The test used by courts: is the sanction imposed so disproportionate to the offense or offenses of which the individual has been found guilty as to be shocking to one's sense of fairness?

What constitutes a penalty judged to be so shocking? An example of the type of punishment that might be judged violating Pell would be to fire someone for a minor offense such as a single instance of smoking on the job.

On the other hand, everything depends on the circumstances. The unique conditions and requirements of a given workplace must be considered in determining the fairness of a penalty.

If, for example, a hospital employee was discovered smoking while working with a patient who was receiving oxygen therapy in violation of hospital rules and procedures, the danger of smoking in such a unique work site to the patient and others could justify the employer imposing a harsher penalty -- even termination -- than might be imposed for a smoking infraction by a hospital employee discovered to be smoking in another, but safer, "non-smoking area."

Another factor that goes hand-in-hand with Pell is the concept that judges are to give "deference" to the appointing authority's determination regarding the penalty to be imposed. Ahsaf v Nyquist, 37 NY2d 182, is a decision illustrating this point.

In short, a court will overturn the disciplinary penalty imposed by an appointing authority only in the event it perceives it to be essentially unfair when measured against the offense committed by the employee.

Further, as a general rule, courts are reluctant to substitute their judgment as to the appropriate penalty to be imposed for that of the employer, especially in disciplinary actions involving law enforcement personnel as law enforcement personnel are viewed as holding "quasi-military" status. As the court commented in Laspisa v Mahoney, 603 NYS2d 536, a law enforcement agency is a quasi-military organization which demanded strict discipline and "great deference is to be accorded a determination regarding the internal discipline of its members."

Dismissal in consideration of the misconduct proven not viewed as "shocking"

Dismissal in consideration of the misconduct proven not viewed as "shocking"
Ortiz v Safir, App. Div., 1st Dept., February 5, 2002

The Appellate Division, First Department sustained New York City's for Police Commissioner Howard Safir's terminating police officer James Ortiz after finding Ortiz guilty of a number of charges of misconduct in the performance of his duties.

Applying the so-called "Pell Doctrine," [Pell v Board of Education, 34 NY2d 222], the court said that under the circumstances imposing the penalty of dismissal did not shock its sense of fairness.

Ortiz was found guilty of disciplinary charges that alleged that in the course of effecting an arrest of an individual for disorderly conduct, he "manhandled an unthreatening, nonresistant arrestee, shoved him down a subway stairway, flung his passport into his face, charged him with resisting arrest without probable cause and made false statements about the incident to the Civilian Complaint Review Board."

Disciplinary penalties imposed on public employees in New York State must meet the "Pell Doctrine." The standard applied: any permissible penalty may be imposed unless the court finds that under the circumstances such a penalty is "shocking to one's sense of fairness."

Typically an individual will appeal the disciplinary findings as to guilt as well as the penalty imposed. Once a court determines that the record supports a finding that the disciplinary determination was not arbitrary or illogical and that it is supported by substantial evidence, it will turn to the issue of whether the disciplinary penalty imposed should be upheld.

This is the point at which the court will apply the Pell Doctrine. The test used by courts: is the sanction imposed so disproportionate to the offense or offenses of which the individual has been found guilty as to be shocking to one's sense of fairness?

What constitutes a penalty judged to be so shocking? An example of the type of punishment that might be judged violating Pell would be to fire someone for a minor offense such as a single instance of smoking on the job.

On the other hand, everything depends on the circumstances. The unique conditions and requirements of a given workplace must be considered in determining the fairness of a penalty.

If, for example, a hospital employee was discovered smoking while working with a patient who was receiving oxygen therapy in violation of hospital rules and procedures, the danger of smoking in such a unique work site to the patient and others could justify the employer imposing a harsher penalty -- even termination -- than might be imposed for a smoking infraction by a hospital employee discovered to be smoking in another, but safer, "non-smoking area."

Another factor that goes hand-in-hand with Pell is the concept that judges are to give "deference" to the appointing authority's determination regarding the penalty to be imposed. Ahsaf v Nyquist, 37 NY2d 182, is a decision illustrating this point.

In short, a court will overturn the disciplinary penalty imposed by an appointing authority only in the event it perceives it to be essentially unfair when measured against the offense committed by the employee.

Further, as a general rule, courts are reluctant to substitute their judgment as to the appropriate penalty to be imposed for that of the employer, especially in disciplinary actions involving law enforcement personnel as law enforcement personnel are viewed as holding "quasi-military" status. As the court commented in Laspisa v Mahoney, 603 NYS2d 536, a law enforcement agency is a quasi-military organization which demanded strict discipline and "great deference is to be accorded a determination regarding the internal discipline of its members."

Appealing retirement system member service determinations

Appealing retirement system member service determinations
Marsh v NY State and Local Employees' Retirement System, App. Div., 291 AD2d 713

The Marsh decision addresses the procedure to follow when challenging a New York State and Local Employees' Retirement System's [ERS] determination regarding a retiree's "years of service credit" for the purpose of determining the individual's retirement allowance. The bottom line: the controlling statute of limitations requires that the individual file an Article 78 [Civil Practice Law and Ruled Article 78] petition within four months of his or her receipt of the "final determination" concerning the calculation of years of service credit.

Two members, Patricia M. Marsh and Nicholas J. Vianna, believed that they were entitled to more member service credit than ERS calculated for them upon their respective retirements.

ERS sent Marsh a letter dated April 25, 1997, advising her of its determination to prorate certain of her member service credit because she worked part time during various periods during her public employment. Marsh retired on March 30, 2000.

Vianna retired on January 1, 1997. ERS told him that he had 17.37 years of member service credit for the purposes of determining his retirement allowance.

Neither Marsh nor Vianna requested an administrative hearing and redetermination of their retirement benefits as determined by ERS. However, in January 2000 they filed a petition asking the court for a "declaratory judgment" that they were entitled to additional service credit.

The Appellate Division said that it was clear that Marsh and Vianna were simply challenging the calculation of their respective "service credits" by challenging ERS's "nearly 25-year-old internal administrative proration procedure as well as an administrative regulation codifying such procedure" set out in 2 NYCRR 370.

The court said that the procedure to be used if an individual believes that his or her member service credit has been miscalculated is expressly governed by Retirement and Social Security Law Sections 74 [b] and 374 [b].

These provisions, said the Appellate Division, require that a member or retiree "dissatisfied with any aspect of his or her retirement package" appeal to the Comptroller by seeking "a hearing and redetermination." If, following this appeal, the individual is dissatisfied with the Comptroller's final determination, he or she must bring a timely Article 78 proceeding if he or she wishes to seek any further relief. The statute of limitations for bringing an Article 78 action is four months.

The court pointed out that the "simple expedient" of calling their current action one for declaratory relief and "characterizing the matter as one of constitutional and contractual dimension" does not cure "this fatal inaction" on the part of both Marsh and Vianna. Clearly filing an Article 78 action in January 2000 was untimely, said the court, and it dismissed both Marsh's and Vianna's petitions.