Negotiating a disciplinary procedure not a mandatory subject of collective bargaining

Negotiating a disciplinary procedure not a mandatory subject of collective bargaining
City of Mount Vernon v. Cuevas, 289 A.D.2d 674 [Leave to appeal denied, 97 N.Y.2^nd 613]

In considering the appeal of the City of Mt. Vernon, the Appellate Division ruled that under certain circumstances, negotiating a contract disciplinary procedure is not a mandatory subject of collective bargaining under the Taylor Law.

Mt. Vernon had appealed a PERB determination that held that its disciplinary procedures were a mandatory subject of collective bargaining in response to the City's claim that its police officers union had submitted a number of nonmandatory or prohibited subjects of collective bargaining for compulsory interest arbitration, one of which involved disciplinary procedures.

The City's argument: Its 1922 City Charter established disciplinary procedures for its police officers and the continuation of such procedures is protected by Civil Service Law Section 76(4). Accordingly, the City said could not be forced to negotiate its disciplinary procedure on the theory that it was a term or condition of employment.

Supreme Court agreed, determining that PERB's decision was "irrational, unreasonable and legally impermissible" and granted the City's motion.

PERB appealed contending that because Section 76(4) was passed years before the Taylor Law, it “could not reasonably be read to reflect ‘any intent on the part of the Legislature to exclude or preclude bargaining as to discipline’”.

Section 76(4), in pertinent part, provides:

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.

The Appellate Division said that although the Taylor Law requires good faith bargaining concerning all terms and conditions of employment which have been held to be a mandatory subject of collective bargaining, here the police officer discipline procedures contained in the City's Charter enacted in 1922 are specifically protected from repeal or modification by Section 76(4).

Affirming the lower court's ruling, the Appellate Division held that under these circumstances, the disciplinary procedures applicable to Mt. Vernon's police officers are not mandatory subjects of negotiation. 

Reclassification of positions

Reclassification of positions
Botti v Lippman, 290 A.D.2d 923

Nicole Botti and other "Court Attorneys" employed by County Judges handling matters in several different county-level courts (referred to as "multi-bench judges") asked to be reclassified to the higher-grade title "Law Clerk to Judge." When the Court's Chief Administrative Judge, Jonathan Lippman, rejected their application for reclassification, they sued. The Appellate Division sustained Judge Lippman's decision. It said that:

Given the broad classification and allocation authority of the Chief Administrator of the Courts, his determinations concerning the classification of positions "will not be disturbed in the absence of a showing that they are wholly arbitrary or without any rational basis."

The court said that Botti and his co-plaintiffs work "in Family ... County and Surrogate's Courts in counties with populations less than 400,000 -- exactly the standard for classifying the title Court Attorney.'"

Botti contended that the fact that they served "multi-bench judges who also handle matters in other county-level courts" justified their reclassification to Law Clerk to Judge. The Appellate Division rejected Botti's argument, finding that in rebuffing their reclassification applications Judge Lippman correctly interpreted the term "full-time" referred to in the “Law Clerk to Judge” job description to mean those judges whose work at the county-level is "exclusively" on matters within the jurisdiction of County Court. This, said the court excluded multibench judges, as they did not serve in such a capacity "full-time."

As there were differences in the nature of the work corresponding to these judicial duties in classifying legal assistants to multibench judges differently from those assisting judges in performing exclusively County Court work, the Appellate Division ruled that "it cannot be said that respondents acted arbitrarily or without any rational basis."

In addition, the court said that classifying Botti's position as Court Attorney "complies with the statutory mandate that nonjudicial employees be classified according to the duties required to be performed and, in addition, reflects the recognized distinctions between the duties of a judge who sits solely in County Court and those of a multi-bench judge."

The Appellate Division also rejected Botti's claim that the Court Attorneys were entitled to additional per diem income whenever they perform work on Supreme Court matters since the Court Attorney job description “expressly contemplates the employees' performance of duties for judges who are designated as "Acting Justices of the Supreme Court for one full term or less." In other words, the court did not consider Court Attorneys performing "Supreme Court" duties to constitute out-of-title work where such work was intermittent and was performed for a term or less.

Reconsideration for promotion does not result in eligibility for retroactive pay

Reconsideration for promotion and then being promoted does not result in eligibility for retroactive pay
Szipcek v Safir, 291 A.D.2d 269

New York City police officer Mitchell Szipcek protested his being "passed over" for promotion to sergeant. He was successful in having his advancement reconsidered and was subsequently promoted to sergeant.

Szipcek then sued, claiming that since he was actually promoted after being reconsidered, he was entitled to” make-whole relief" in the form of back pay and retroactive seniority.

The Appellate Division, First Department disagreed. It ruled that in the event of a defect in the Civil Service appointment or promotion process, the remedy is not retroactive appointment or promotion with an award of back pay but merely reconsideration for appointment or promotion after the defect in the process has been corrected. The court cited Andriola v Ortiz, 82 NY2d 320, in support of its ruling.