ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

November 26, 2011

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law

Source: Justia November 25, 2011
 
Court: U.S. 5th Circuit Court of Appeals
Docket: 10-41108
 November 23, 2011
Judge: Higginbotham
Areas of Law: Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law
This appeal arose out of an oil spill on the Neches River. Appellants challenged the National Pollution Funds Center's (NPFC) final claim determination denying reimbursement for costs arising from the spill. The district court rejected appellants' challenge to the agency determination. The court concluded that the NPFC's interpretation of 33 U.S.C. 2703 was entitled to deference and that appellants have not demonstrated that the NPFC's denial of the third-party affirmative defense claim should be overturned under the standard set forth in the Administrative Procedure Act, 5 U.S.C. 500 et seq.




Court: U.S. 5th Circuit Court of Appeals
Docket: 11-30082
 November 18, 2011
Judge: Prado
Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law
Plaintiffs filed a civil action against St. Tammany Parish Sheriff Rodney Strain and Deputies Bryan Steinert, Julie Boynton, and Wayne Wicker, each in their individual and official capacities. Plaintiffs brought claims for negligence under Louisiana state law and for deliberate indifference based on the Eighth and Fourteenth Amendments under 42 U.S.C. 1983. The only three issues to survive summary judgment were the state-law negligence claims and the section 1983 claims against Steinert in his personal capacity and Strain in his official capacity. At issue were the two section 1983 claims. The court dismissed Steinert's appeal for lack of jurisdiction because he challenged the district court's factual conclusions on interlocutory appeal. The court dismissed Strain's appeal for lack of jurisdiction because Strain was being sued in his official capacity, the suit against him was "in essence" a suit against a municipality, and municipal governments could not raise immunity defenses on interlocutory appeal.




Court: U.S. 9th Circuit Court of Appeals
Docket: 09-16362
 November 23, 2011
Judge: Tallman
Areas of Law: Government & Administrative Law, Injury Law, Medical Malpractice, Military Law
After his unsuccessful cataract surgery, plaintiff brought a claim for battery against the United States government and his United States Navy surgeon. The United States invoked the Gonzalez Act, 10 U.S.C. 1089, immunizing individual military medical personnel from malpractice liability. At issue was whether section 1089(e) waived the government's sovereign immunity for common law battery claims. The court held that it did not and affirmed the district court's dismissal of plaintiff's complaint for lack of subject-matter jurisdiction. The court did not address plaintiff's remaining claims.




Court: U.S. 10th Circuit Court of Appeals
Docket: 11-3046
 November 22, 2011
Judge: Ebel
Areas of Law: Civil Rights, Family Law, Government & Administrative Law
Plaintiff Katherine Winters filed this lawsuit pursuant to 42 U.S.C. 1983 alleging violations of an asserted right to the care and custody of her biological grandchildren. She named the State of Kansas, the state Department of Social and Rehabilitation Services, social workers and their supervisors and the state court judge who ruled on the "Child in Need of Care" (CINC) matter relating to all three children and the adoption proceeding of her grandson "C.W.," as well as a prosecutor, guardian ad litem and court-appointed special advocates. Plaintiff requested remedies including declaratory and injunctive relief voiding state-court placement and adoption orders, plus compensatory damages of $67 million and punitive damages. The district court dismissed the action, and Plaintiff appealed. On appeal, Plaintiff argued that the district court erred in its determinations on subject-matter jurisdiction, defendants’ immunity, and the sufficiency of her complaint. Her fundamental argument was that the district court failed to give proper consideration to her claim of a constitutional right to the custody and care of C.W. Having carefully reviewed the record on appeal and the appellate briefs in the light of the governing law, the Tenth Circuit agreed with the district court’s analysis of Plaintiff's claims. The Court therefore affirmed the judgment of the district court.




Court: U.S. D.C. Circuit Court of Appeals
Docket: 10-1184
 November 18, 2011
Judge: Tatel
Areas of Law: Communications Law, Government & Administrative Law
This case involved the FCC's Universal Service Program, which provided subsidies to ensure that low-income consumers, schools, health care providers, and libraries have access to advanced telecommunications services and that rates and services in rural areas were "reasonably comparable" to rates and services in urban areas pursuant to the Telecommunications Act of 1996, 47 U.S.C. 254. At issue was the FCC's order declining to increase subsidies under the rural rates and services component of the Universal Services Program. Here, the FCC explained that "reasonable comparability" between rural and urban areas had been largely accomplished and that expansion of the high-cost support fund would "jeopardize other statutory mandates," such as extending services to schools, hospitals, and libraries, and "ensuring affordable rates in all parts of the country." Because of this, and because the FCC had promised to address state-specific issues, like those presented by Vermont and Maine, through the waiver process, its decision to leave the high-cost support mechanism unchanged was neither arbitrary nor capricious. Thus, the court denied the petition for review.




Court: U.S. D.C. Circuit Court of Appeals
Docket: 10-5386
 November 18, 2011
Judge: Sentelle
Areas of Law: Energy, Oil & Gas Law, Entertainment & Sports Law, Government & Administrative Law
TRCP filed for declaratory and injunctive relief in the district court, arguing that the Bureau of Land Management's 2008 Record of Decision regarding the Pinedale Anticline Project Area (PAPA) violated the Federal Land Policy Management Act (FLPMA), 43 U.S.C. 1701 et seq.; that the accompanying environmental impact statement (EIS) violated the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq.; and the 2000 Record of Decision violated both acts. The district court granted summary judgment for the Bureau and TRCP appealed. The court held that the Bureau considered a reasonable range of alternatives in the EIS addressing the proposal to expand natural gas development in the PAPA. That EIS sufficiently addressed the proposed action's impact on hunting in the PAPA. The record supported the Bureau's determination that the 2008 Record of Decision would prevent unnecessary or undue degradation of the PAPA. Finally, TRCP's claims based on the Bureau's alleged non-enforcement of the 2000 Record of Decision were moot. Accordingly, the judgment of the district court was affirmed.




Court: U.S. D.C. Circuit Court of Appeals
Docket: 10-1344
 November 18, 2011
Judge: Sentelle
Areas of Law: Communications Law, Government & Administrative Law
Petitioner appealed a licensing order of the FCC affirming a decision of the Wireless Bureau denying reconsideration of licensing actions taken by the Wireless Bureau's Mobility Division. The Mobility Division granted Thomas Kurian's request to withdraw a radio spectrum assignment application and dismissed petitioner's notification of consummation of that same assignment. Petitioner argued that the FCC's order should be reversed because the FCC and Kurian engaged in unlawful ex parte communications; the FCC failed to give proper public notice of its decisions to grant Kurian's withdrawal request; and the FCC acted arbitrarily and capriciously in rendering the order. The court held that petitioner waived its ex parte and public notice arguments, and the FCC acted neither arbitrarily nor capriciously in rendering its order affirming the Wireless Bureau's order.




Court: Georgia Supreme Court
Docket: S10G1882, S10G1892
 November 21, 2011
Judge: Benham
Areas of Law: Constitutional Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
These appeals arose from annexations by the City of parcels of unincorporated real property in Fayette County. At issue was whether appellee, the City resident seeking to enjoin the City from providing services to the area annexed in 2007, had standing as a citizen-taxpayer to do so; whether the appeal was moot; and whether a subsequent annexation by the City cured the flaw the Court of Appeals found in the first annexation. The court concluded that the appeal was moot when it was docketed in the Court of Appeals, and the Court of Appeals should have dismissed it as such. In light of this decision, there was no need to address the issue of appellee's standing as a citizen-taxpayer. Accordingly, the court reversed and remanded.




Court: Indiana Supreme Court
Docket: 93S02-1102-EX-90
 November 17, 2011
Judge: Rucker
Areas of Law: Government & Administrative Law, Health Law, Injury Law, Insurance Law, Labor & Employment Law
Appellant Indiana Spine Group provided medical services to employees of various businesses for injuries the employees sustained arising out of and during the course of their employment. The employers authorized the services and made partial payments. In each case, more than two years after the last payments were made to the injured employee, Appellant filed with the worker's compensation board an application for adjustment of claim seeking the balance of payments. The Board dismissed the applications as untimely. In each case the court of appeals reversed and remanded. At issue on appeal was what limitation period was applicable to a medical provider's claim seeking payment of outstanding bills for authorized treatment to an employer's employee when the Worker's Compensation Act was silent on the question. The Supreme Court reversed the Board, holding (1) the limitation period contained in the general statute of limitation enumerated in Ind. Code 34-11-1-2 controlled; and (2) because Appellant's claim was timely under the statute, the Board erred by dismissing Appellant's application.




Court: Iowa Supreme Court
Docket: 091670
 November 18, 2011
Judge: Waterman
Areas of Law: Government & Administrative Law
Plaintiff, City of Riverdale, spent sixteen months in district court litigating wither Defendants, several individuals, were entitled to view security camera video of a confrontation with the mayor over earlier records requests at the city clerk's counter. The mayor filed a declaratory judgment action at the advice of a junior attorney even though a senior partner attorney earlier advised the mayor to produce the recordings. The trial court ordered the City to turn over a copy of the videotape and awarded Defendants attorney fees. The court of appeals vacated the fee award because the district court made no finding of bad faith on the part of the City. The Supreme Court vacated the court of appeals and affirmed the district court, holding (1) Iowa Code 22.10(3)(c) required the City to pay Defendants' reasonable attorney fees because the district court found the City violated the statute by withholding the video; and (2) the district court did not err by implicitly rejecting the City's good-faith, reasonable delay defense notwithstanding the City's reliance on advice of legal counsel. Remanded.




Court: Montana Supreme Court
Docket: DA 10-0651
 November 22, 2011
Judge: Wheat
Areas of Law: Government & Administrative Law, Real Estate & Property Law
The Slacks sued the County for damages due to the County's alleged failure to comply with its statutory obligation to notify the Slacks that the home they purchased was once the site of a clandestine methamphetamine laboratory. After a trial, the jury found the County was negligent and awarded the Slacks $563,592 in damages. The Supreme Court affirmed on all issues, holding (1) the County waived all the issues it raised on appeal; and (2) the district court properly denied the Slacks' motion for attorneys' fees because simply including attorneys' fees in a bill of costs does not entitle a party to recover attorneys' fees, and the County's defense was not frivolous or pursued in bad faith.




Court: Montana Supreme Court
Docket: DA 10-0615
 November 23, 2011
Judge: Cotter
Areas of Law: Constitutional Law, Government & Administrative Law
The City Police Department conducted an internal investigation of an administrative coordinator, who was placed on administrative leave after she allegedly misused public funds. The Department created a sixteen-page due process letter detailing the evidence against the coordinator, who subsequently resigned. The Billings Gazette requested the letter, but the City declined to release it. The Gazette sued the City. The district court ordered that the document be provided to the Gazette. The Supreme Court affirmed, holding (1) where two constitutional rights are implicated, including the public's right to know about the actions of public agencies and employees and the employees' right to privacy, the district court must balance the two rights to determine whether the employees' right to privacy outweighs the public's right to know; (2) in this case, the coordinator did not have a reasonable expectation of individual privacy to the document because she held a position of trust with the Department and she was accused of breaching that trust; and (3) the mere prospect of a criminal case will not deprive the public of its right to access a public document once that right has been balanced against the right to privacy.




Court: New Hampshire Supreme Court
Docket: 2010-548
 November 22, 2011
Judge: Duggan
Areas of Law: Government & Administrative Law
Defendant New Hampshire Division for Children, Yought and Families (DCYF) appealed a superior court order that it pay Plaintiff Chase Home for Children over $3 million. The dispute concerned rates the DCYF paid to the Chase home for fiscal years 2004 through 2006 pursuant to Provider Service Agreements the home had with DCYF. Due to state budget cuts, DCYF notified its contracted service providers like Chase that it would be unable to increase rates. The service providers asked DCYF to reconsider, claiming that the then-current rates were inconsistent with the agency's own rules. A hearing panel established that DCYF underpaid the service providers. The providers requested the panel order DCYF to pay them, but the panel ruled it lacked authority to do so. The providers appealed to the Supreme Court. Upon review, the Supreme Court found that the legislature specifically authorized the courts to enter a monetary judgment against the State when it breaches a contract: "to hold otherwise would require [the Court] to ignore these legislative directives and to permit a State agency to disregard its contractual obligations. Such a result finds no support in New Hampshire law." The Court therefore affirmed the hearing panel's conclusion and ordered DCYF to pay the service providers for the underpayments.




Court: New Mexico Supreme Court
Docket: 33,029
 November 21, 2011
Judge: Maes
Areas of Law: Government & Administrative Law
In the General Appropriation Act of 2011, the Legislature appropriated $150,000 to the Department of Finance and Administration "[f]or disbursement to the New Mexico mortgage finance authority to carry out the responsibilities, duties and provisions of the regional housing law. The Governor signed the General Appropriation Act of 2011; however, the Governor struck the "1" from the $150,000 appropriated by the Legislature to the Department of Finance and Administration, thereby changing or "scaling" the appropriation down to $50,000. The Governor stated that she vetoed the "1" because, although she agreed with the Legislature that regional housing oversight was a necessary expenditure, but she "disapproved of the excessive part of the appropriation." Citizens of the State of New Mexico, electors, taxpayers, and members of the New Mexico Legislature (Petitioners) subsequently filed a Verified Petition for Writ of Mandamus/Prohibition. Petitioners sought a writ restoring the full appropriation, claiming it was an unconstitutional application of the Governor's partial veto authority. The Supreme Court ordered that the Governor’s "partial veto that would allow scaling of appropriations [was] invalid and unconstitutional" and restored the $150,000 Legislative appropriation.




Court: New York Court of Appeals
Docket: 190
 November 21, 2011
Judge: Jones
Areas of Law: Constitutional Law, Government & Administrative Law
Plaintiffs, a group of 50 taxpayers of the State of New York, commenced this declaratory judgment action against the State and other defendants, challenging numerous loans and grants issued by public defendants to private entity defendants and other private companies in order to stimulate economic development. At issue was plaintiffs' challenge to appropriations in the New York State 2008-2009 budget. The court held that it could find no constitutional infirmity to the challenged appropriations. Although some could question the wisdom of the policy choices, "the legislature has made a valid legislative judgment." Accordingly, the order of the Appellate Division was reversed.




Court: Ohio Supreme Court
Docket: 2010-0734
 November 17, 2011
Judge: Per Curiam
Areas of Law: Government & Administrative Law, Injury Law, Labor & Employment Law
Patrick Donohoe died from injuries sustained in a workplace accident. His widow, Catherine, filed an application for additional workers' compensation benefits, claiming that Patrick's accident resulted from his employer's violation of specific safety requirements (VSSRs) governing the construction industry. The Industrial Commission of Ohio denied her application. The court of appeals vacated the order and returned the cause to the Commission for further consideration. Both Catherine and the employer appealed. At issue on appeal was (1) whether the Commission staff hearing officer's order, which could be interpreted in different ways, was deficient; and (2) whether the Commission erred by denying Catherine's application because there were no eyewitnesses to the accident. The Supreme Court affirmed, holding (1) an order that can engender two viable, yet irreconcilable, interpretations is too ambiguous to withstand scrutiny; (2) an order that is potentially based on an erroneous belief that a VSSR cannot issue in the absence of eyewitnesses is clearly an abuse of discretion; and (3) therefore, the court of appeals was correct in returning the cause to the Commission for clarification and consideration of all the evidence.




Court: Oregon Supreme Court
Docket: S059448
 November 23, 2011
Judge: Durham
Areas of Law: Constitutional Law, Election Law, Government & Administrative Law
Petitioners Gail Rasmussen and Bethanne Darby sought review of the Attorney General's certified ballot title for Initiative Petition 18 (2012). If approved by the voters, Initiative Petition 18 would enact a prohibition on the imposition of any state or local estate tax, inheritance tax, tax on property transferred in connection with a person's death, or tax on the transfer of property between family members. The proposed measure would supersede current statutes that imposed those taxes, and it would exclude from its prohibition certain statutes that imposed fees relating to attendant transactions following a person's death. Petitioners argued that the certified "yes" and "no" vote result statements did not comply with the applicable statutory standards. Upon review, the Supreme Court found that indeed the certified statements were inaccurate, and the Court "invited" the Attorney General to address and correct the problems with the narrative.




Court: South Carolina Supreme Court
Docket: 27065
 November 21, 2011
Judge: Plecones
Areas of Law: Environmental Law, Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
The South Carolina Coastal Conservation League (League) and the South Carolina Department of Health and Environmental Control (DHEC) appealed an administrative law judge's (ALJ) order that allowed Respondent Kiawah Development Partners to construct erosion control devices in a critical zone on Captain Sam's Spit (Spit). Respondent owend a peninsula (Spit) which lies primarily south of Kiawah Island, surrounded on three sides by the Atlantic Ocean, Kiawah River and Captain Sam's Inlet which separates the Spit from Seabrook Island. For the past sixty years, the Spit has been "growing," accreting sand on the ocean side at a greater rate than it has been losing ground to erosion on the river side. Respondent leased oceanfront property near the neck to the Charleston County Parks and Recreation Commission, which operates Beachwalker Park there. Respondent sought a permit from DHEC to erect a 2,783 foot bulkhead/revetment combination along the Kiawah River, with the structure to begin at the neck, that is, at Beachwalker Park. DHEC authorized construction of the proposed erosion control device for 270 feet, beginning at Beachwalker Park, and denied the remaining portion of the request. Both the League and Respondent requested a contested case hearing before the ALJ, the League to protest the portion of the permit request which was granted, and Respondent to challenge the portion denied. The Appellants contended the ALJ failed to give the deference due DHEC's interpretation of the statutes and regulations, and further that he exceeded his authority in rewriting the permit, resulting in one with terms neither approved by DHEC nor sought by Respondent. Upon review of the ALJ's ruling and the applicable legal standards, the Supreme Court reversed and remanded, finding the ALJ's decision was "affected by numerous errors of law … beginning with the ALJ's misunderstanding of the applicable statutes, regulations, and public policies, and concluding with his erroneous effort to craft a new permit, one which has never been sought by respondent, nor reviewed by OCRM, and which he, in any case, lack[ed] the authority to issue."




Court: South Carolina Supreme Court
Docket: 27064
 November 21, 2011
Judge: Toal
Areas of Law: Government & Administrative Law, Injury Law, Insurance Law, Labor & Employment Law
Appellant Alexander Michau appealed a ruling by the Appellate Panel of the South Carolina Workers' Compensation Commission (Commission) denying his claim for repetitive trauma injuries to his shoulders. Specifically, Appellant challenged the Commission's interpretation and application of section 42-1-172 of the South Carolina Code. Prior to his injury in 2008, Appellant did not report any work-related problems with his arms to his employer, although he sought outside treatment. The Commission denied Appellant's claim on the grounds that "the greater weight of the medical evidence reflects [Appellant's] upper extremity and shoulder problems are related to pre-existing osteoarthritis and/or rheumatoid arthritis and not caused or aggravated by his employment with Georgetown County." Appellant disputed the admissibility of the Commission's expert doctor's report under South Carolina Code section 42-1-172 because it was not stated "to a reasonable degree of medical certainty." Appellant argued that without this evidence, the remaining competent evidence would support his claim of sustaining a compensable repetitive trauma injury. The Supreme Court concluded after a review of the Commission's record that the doctor was not Appellant's treating doctor, and his employer sought a medical "opinion" to decide the compensability of Appellant's claim. In this instance, the Court concluded that the doctor's testimony was indeed an "opinion" within the meaning of the Code, and therefore inadmissible against Appellant in adjudicating his claim. The Court reversed the Commission's decision to admit the doctor's medical opinion and remanded the case to determine whether the remaining competent evidence supported Appellant's claim of injury.




Court: South Carolina Supreme Court
Docket: 27069
 November 22, 2011
Judge: Toal
Areas of Law: Election Law, Government & Administrative Law
Petitioners Beaufort County and several officials from county boards of elections and registration sought a declaration from the Supreme Court in its original jurisdiction that the General Assembly has neither authorized the State Election Commission or the County Election Commissions to conduct a Presidential Preference Primary in 2012, nor mandated that Petitioners bear the financial burden of conducting the primary. The South Carolina Republican Party scheduled a Presidential Preference Primary for January 21, 2012. In the 2011-2012 Appropriations Act, the General Assembly provided that filing fees received from candidates to run in primary elections may be used by the State Election Commission to conduct the 2012 Presidential Preference Primary elections. In addition, the State Election Commission is authorized to use funds originally appropriated for ballot security to conduct the Presidential Preference Primary elections and the statewide primaries and runoffs. Petitioners contended the General Assembly did not authorize the State Election Commission or the County Election Commissions to conduct a Presidential Preference Primary in 2012 or any election cycle thereafter. In addition, Petitioners argued the amount set forth in the Appropriations Act were insufficient to cover the actual costs to the counties of conducting the 2012 primary. Because the Court was "firmly persuaded" that the General Assembly, through passage of Provisos 79.6 and 79.12 for fiscal year 2011-2012, intended to suspend the temporal limitation in S.C. Code Ann. 17-11-20(B)(2) (Supp. 2010), the Court entered judgment for Respondents the State Election Commission.




Court: South Dakota Supreme Court
Docket: 25868
 November 16, 2011
Judge: Gilbertson
Areas of Law: Government & Administrative Law, Real Estate & Property Law, Zoning, Planning & Land Use
Rapid City ordinances required a developer to complete certain public improvements before the City accepted a final plat, but in lieu of completing the improvements before the City accepted a plat, the City could accept a surety from a developer. In this case, several Developers provided sureties, which the City accepted. The sureties expired, after which the City sued Developers, seeking relief to have the required public improvements completed or repaired to meet the City's standards. The circuit court granted summary judgment in favor of Developers, concluding that when the sureties expired, Developers were no longer liable for the improvements. The Supreme Court reversed, holding that, under the ordinances and specifications, Developers remained liable until the City accepted the improvements by a final acceptance letter. Remanded.




Court: Vermont Supreme Court
Docket: 2010-448
 November 23, 2011
Judge: Dooley
Areas of Law: Government & Administrative Law, Injury Law, Trusts & Estates
Plaintiff Andrew Kennery, on behalf of the estate of Gladys Kennery, appealed the decision of the Windham Superior Court that granted the State's motion for summary judgment on his complaint alleging negligence, gross negligence, and civil rights violations against the State, two state troopers, and the Vermont Department of Public Safety (VDPS). Plaintiff's lawsuit stemmed from a "welfare check" the troopers performed on Plaintiff's decedent, Gladys Kennery. Gladys's daughter had requested that the troopers check on her elderly mother, but the troopers searched the wrong residence. Meanwhile, Gladys had collapsed in her backyard and was unable to get back up and reach shelter. Gladys was found the next morning and died twelve days later from hypothermia caused by prolonged exposure to the cold. The superior court held that the State owed no duty of reasonable care in performing the welfare check, thereby defeating Plaintiff's claims. Upon review, the Supreme Court held that the trial court erred in granting summary judgment to defendants. Genuine issues of material fact remained as to whether a duty of care was created under the Restatement (Second) of Torts section 324A based upon the State's undertaking to perform the welfare check and whether the troopers breached that duty such that the State was liable under the Vermont Tort Claims Act (VTCA). The Court also held that the court erred in dismissing Plaintiff's claim of gross negligence against the troopers. The case was reversed and remanded for further proceedings.




Court: Vermont Supreme Court
Docket: 2010-185
 November 23, 2011
Judge: Dooley
Areas of Law: Constitutional Law, Criminal Law, Government & Administrative Law
Plaintiff David Lay appealed a superior court’s order that granted summary judgment to Defendants William J. Pettengill, Elizabeth F. Novotny, and Daniel K. Troidl on his complaint. Plaintiff's claims stemmed from an internal investigation into his behavior as a state trooper and his subsequent resignation from the Vermont State Police (VSP). Plaintiff argued that the superior court erred in granting judgment to Defendants on his claims of fraudulent nondisclosure, retaliatory prosecution, malicious prosecution, and negligent referral. He also challenged several discovery rulings made by the court. Plaintiff was suspended from duty due to an ongoing investigation by the Internal Affairs Unit. He would later hire a lawyer and settle charges against him which included falsification and misuse of property and evidence; making a false statement; failing to follow-up or make reports in numerous cases; and abuse of authority for conducting a warrantless search. The Windham County State Attorney's office became involved in commencing a criminal prosecution against Plaintiff. A judge found probable cause to issue a warrant for Plaintiff's arrest. At the time the second investigation was pending, Plaintiff had found new work by a private company. He was terminated from his job as a result of the arrest warrant. Upon returning to Vermont, he was charged with numerous crimes. He reached a plea agreement. Subsequently, Plaintiff filed suit against defendants raising numerous claims, including fraudulent nondisclosure, violation of his civil rights, and malicious process. In April 2010, the court issued the summary judgment decision from which Plaintiff appealed. Finding no legal basis for Plaintiff's arguments on appeal, the Supreme Court affirmed the appellate court and dismissed his case.




Court: Vermont Supreme Court
Docket: 2010-245
 November 18, 2011
Areas of Law: Family Law, Government & Administrative Law, Labor & Employment Law
"This is a case of avoidable error and its consequences." The Vermont League of Cities and Towns (VLCT), the workers' compensation insurance carrier for the Town of Randolph, settled a compensation claim of Claimant Stacey Colson and paid the settlement amount to the Office of Child Support pursuant to an earlier order that OCS issued to collect Claimant's back child support payments. VLCT failed to deduct the amount of an attorney's fee lien granted by the Commissioner of the Department of Labor (DOL) to claimant’s lawyer. VLCT acted with the understanding that the lawyer would not seek the fee if, as occurred, claimant was awarded a lump-sum compensation amount. The lawyer sought her fee, but VLCT resisted double paying that amount, and the dispute has ended up before the Supreme Court after two decisions from the Commissioner and one from Superior Court. Claimant appealed the Commissioner’s grant of summary judgment to VLCT, in which the Commissioner concluded that VLCT acted appropriately in paying over the entire proceeds of claimant’s workers’ compensation award to OCS. Claimant argued that his attorney's lien had priority over OCS's claim for child support arrearages. He claimed that the Commissioner's findings were incomplete and contradictory, that the Commissioner erred when she determined his attorney’s lien did not have priority, and that DOL should be compelled to enforce his attorney’s lien for fees. Upon review of the applicable legal authority and the trial court record, the Supreme Court found that the OCS lien was first in time and therefore took priority, and affirmed the Commissioner's holding that VLCT could not be required to pay the attorney's fee amount to Claimant's attorney.




Court: Washington Supreme Court
Docket: 62613-2-i, 62711-2 , 84379-1
 November 23, 2011
Judge: Wiggins
Areas of Law: Family Law, Government & Administrative Law
James R. Hardman and his mother Alice Hardman, certified professional guardians, are the court-appointed guardians of more than twenty Department of Social and Health Services (DSHS) clients residing at the Fircrest School, a residential habilitation center (RHC) in the city of Shoreline. The Hardmans also engage in extensive advocacy activities, lobbying officials at the local, state, and federal levels to keep Fircrest and other RHCs open and to oppose efforts to place Fircrest residents in community-based programs that the Hardmans believe provide inadequate care. In their triennial guardian reports, the Hardmans requested compensation for their advocacy activities. DSHS opposed the fee requests, arguing that the advocacy work was outside the scope of the guardians' duties. The Court of Appeals denied the Hardmans' request for advocacy fees, finding that the advocacy work did not provide a direct benefit to the indidivual wards. Upon review of the trial court record and the parties' appellate briefs, the Supreme Court found that the Hardmans were not entitled to the compensation because the advocacy activities were neither individualized to serve a particular ward's best interests nor necessary to perform their guardianship duties. The Court affirmed the Court of Appeals.




Court: West Virginia Supreme Court of Appeals
Docket: 100916
 November 21, 2011
Judge: Workman
Areas of Law: Government & Administrative Law
The assessor and sheriff of Mingo County sought to remove Gregory Smith from his position as commissioner on the Mingo County Commission. A three-judge court empaneled by the Supreme Court denied the petition for removal and dismissed the case. Smith subsequently filed a petition for a writ a mandamus, seeking to compel the Commission to reimburse him for attorney's fees and costs that he spent in defending against the removal petition. The circuit court denied the petition. The Supreme Court reversed, holding that the circuit court erred in (1) finding that Smith could have sought reimbursement of attorney's fees from the three-judge panel, and (2) determining that Powers v. Goodwin, which authorizes the use of mandamus to obtain reimbursement of attorney's fees following a successful defense in a removal action, was no longer good law. The Court (1) remanded for reconsideration of whether Smith established the three necessary elements entitling him to a writ of mandamus, and (2) directed the circuit court, in considering whether Smith had a clear legal right to the relief sought, to determine if Smith met the three-part test set forth in Powers.




Court: West Virginia Supreme Court of Appeals
Docket: 101540
 November 18, 2011
Judge: Workman
Areas of Law: Government & Administrative Law, Health Law
Respondent, who had a diagnosis of autism with obsessive compulsive disorder traits and hyperactive traits, had participated for several years in the federal Mentally Retarded / Developmentally Delayed Home and Community-Based Waiver Program, which provided in-home and community-based services for persons with mental retardation or a delayed development condition. The state Department of Health and Human Resources (DHHR) subsequently terminated Respondent's benefits. The circuit court reversed the DHHR's decision based on the DHHR's failure to present evidence that Respondent's condition had improved since he first began receiving benefits. DHHR appealed, arguing that the circuit court erred in placing the burden of proof on it rather than on Respondent. The Supreme Court affirmed, holding (1) when the DHHR seeks to reduce or terminate benefits that a claimant is receiving under the Waiver Program, the DHHR has the burden of proof to show a change in circumstances warranting such action, and therefore, the circuit court did not err in determining that the DHHUR had the burden to show some medical improvement in Respondent's condition; and (2) the circuit court did not abuse its discretion in finding that the DHHR had failed to meet its burden of proof.




Court: West Virginia Supreme Court of Appeals
Docket: 101596
 November 23, 2011
Judge: McHugh
Areas of Law: Civil Rights, Constitutional Law, Government & Administrative Law
Appellee was allegedly hit in the head by a law enforcement officer during a confrontation. Appellee filed a civil complaint against the city and the two officers involved in the incident (Appellants), alleging that his civil rights had been violated due to the use of excessive force by the officers. Appellants moved for summary judgment, asserting immunity from suit both on qualified immunity and statutory immunity grounds. The circuit court denied the motion. The Supreme Court reversed the denial of summary judgment, holding (1) a public officer is entitled to qualified immunity from civil damages for performance of discretionary functions where (i) a trial court finds the alleged facts do not demonstrate that the officer's conduct violated a constitutional right, or (ii) a trial court finds the evidence could establish the officer's conduct violated a constitutional right but further finds that it would be clear to any reasonable officer that such conduct was lawful in the situation confronted; and (2) Appellants were entitled to qualified immunity from suit, either because (i) no constitutional violated was established by the facts alleged, or (ii) a reasonable officer confronting the same situation, without notice to the contrary, would have considered the action lawful.




Court: West Virginia Supreme Court of Appeals
Docket: 101632
 November 17, 2011
Judge: Benjamin
Areas of Law: Civil Rights, Constitutional Law, Contracts, Education Law, Government & Administrative Law
Petitioners were fifteen employees of the county Board of Education, who filed a grievance regarding changes made to the subsequent year's extracurricular coaching contracts, claiming they were entitled to receive notice and a hearing prior to the adoption of the changes and that they received neither. The ALJ and the circuit court denied the grievance. Petitioners appealed, contending that W. Va. Code 18A-2-7 gave them the right to receive a hearing before the Board could unilaterally alter the terms of the coaching contracts. The Supreme Court affirmed the circuit court's denial of Petitioners' grievance, holding that the circuit court's decision was not clearly wrong nor was it arbitrary, capricious, an abuse of discretion, or contrary to law.




Court: West Virginia Supreme Court of Appeals
Docket: 101627
 November 17, 2011
Judge: McHugh
Areas of Law: Agriculture Law, Government & Administrative Law, Tax Law
Taxpayer, related corporations that operated a vertically-integrated poultry production business, sought an exemption from ad valorem taxes on five industrial personal property tax returns it filed with the State Tax Department, claiming it was exempt from such taxation under either the "subsistence of livestock" or the "farm" exemption under W. Va. Code 11-3-9-(a)(21), (28). The State Tax Commissioner concluded that Taxpayer was not entitled to either exemption. The trial court (1) ruled that Taxpayer was entitled to claim the "subsistence of livestock" exemption in connection with its hatchery operation but not with regard to personal property used at its live haul center and feed mill operation; and (2) concluded that none of Taxpayer's operation qualified for the "farm" exemption. The Supreme Court affirmed, holding that the trial court did not err in ruling that Taxpayer was not entitled to any exemptions from personal property taxation in connection with its commercial poultry operation other than the exemption afforded to its hatchery operation.




Court: West Virginia Supreme Court of Appeals
Docket: 11-0081
 November 17, 2011
Judge: McHugh
Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Government & Administrative Law
After Appellee was arrested for DUI, the Division of Motor Vehicles (DMV) revoked Appellee's driver's license for two years. Appellee filed a request for an administrative hearing, which was conducted on May 6, 2008. By final order dated October 13, 2009, the DMV Commissioner ordered that Appellee's privilege to drive a motor vehicle be revoked for six months. Appellee appealed the revocation order, arguing that the seventeen-month delay between the administrative hearing and entry of the final order revoking his driver's license violated his procedural due process rights. The circuit court reversed the order, concluding that the excessive delay violated Appellee's due process rights. The Supreme Court reversed, holding that Appellee was required to show actual and substantial prejudice as a result of the delay. Remanded to (1) give Appellee the opportunity to present evidence of prejudice and to give the Commissioner the opportunity to present evidence regarding the reasons for the delay; and (2) balance the resulting prejudice against the reasons for the delay in order to determine whether the delay violated Appellee's right to due process.




Court: West Virginia Supreme Court of Appeals
Docket: 101420
 November 18, 2011
Judge: McHugh
Areas of Law: Government & Administrative Law, Health Law
Petitioner, who had a diagnosis of severe autism, had been participating in the federal Mentally Retarded / Developmentally Delayed Home and Community-Based Waiver Program, which provided in-home and community-based services for persons with mental retardation or a delayed development condition. The state Department of Health and Human Resources (DHHR) terminated Petitioner's benefits after determining that Petitioner did not demonstrate substantial adaptive deficits in three or more major life areas. A hearing officer upheld the DHHR's decision. The circuit court affirmed without holding any further proceedings. The Supreme Court reversed, holding that the trial court committed error by failing to make an independent review of Petitioner's eligibility for participation in the Waiver Program. Remanded.

November 25, 2011

Defamation action based on the publication of a judicial decision fails

Defamation action based on the publication of a judicial decision fails
Panghat v New York State Div. of Human Rights, 2011 NY Slip Op 08475, Appellate Division, First Department

Lijo Panghat, alleging that he had suffered defamation as the result of the New York State Division of Human Rights’ having published of a judicial decision in a related matter on its website, sued the Division in the Court of Claims.

The Appellate Division affirmed the Court of Claims’ dismissing his complaint, commenting that Civil Rights Law §74 prohibits a civil action that alleges injury as a result of "the publication of a fair and true report of any judicial proceeding." Further, said the court, “The privilege under that statute is absolute and applies even in the face of allegations of malice or bad faith.”

Civil Rights Law §74 grants certain privileges in situations involving an action for libel. The section provides that “A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published.”

§74, however, states that it “does not apply to a libel contained in any other matter added by any person concerned in the publication; or in the report of anything said or done at the time and place of such a proceeding which was not a part thereof.”

The Commissioner of Education will not render an advisory opinion on an issue before it becomes justiciable

The Commissioner of Education will not render an advisory opinion on an issue before it becomes justiciable
Decisions of the Commissioner of Education # 16,313.

Pursuant to the authority set out in Education Law §2568,* a employee of the New York City Department of Education [H.C.A.] was directed to report for a medical examination.

Contending that, among other things, the order directing H.C.A. to report for the medical examination constituted retaliation against H.C.A as the result of the filing an EEOC complaint against the Department alleging sexual harassment and retaliation, the employee appealed to the Commissioner of Education. 

The Department, however, asked the Commissioner to dismiss H.C.A’s appeal as moot “ because it had canceled and had removed the request for the examination from H.C.A’s personnel file.

The Commissioner, commenting that only matters in actual controversy will be considered and no decision will be promulgated involving a situation that longer exist or which subsequent events “have laid to rest,” granted the Department’s motion to dismiss.

As the only relief H.C.A requested “was interim relief and removal of the medical evaluation request from her personnel files,” which the Department represented it had already done in its answer to H.C.A ‘s appeal, the Commissioner dismissed H.C.A‘s appeal as moot but commented that H.C.A. has the right to commence an appeal with a request for interim relief in the event Department took such action in the future.

* §2568, which authorizes the Superintendent of schools to require medical examination of certain employees of certain boards of education, provides, in pertinent part: The superintendent of schools of a city having a population of one million or more shall be empowered to require any person employed by the board of education of such city to submit to a medical examination by a physician or school medical inspector of the board, in order to determine the mental or physical capacity of such person to perform his duties, whenever it has been recommended in a report in writing that such examination should be made.



Unpaid deferred salary increases not included in determining a retirement allowance


Unpaid deferred salary increases not included in determining a retirement allowance
Kivo v. Levitt, 67 AD2d 464

The salary increase negotiated by the employee’s union to Kivo. Instead the payment was deferred under the New York State Financial Emergency Act for the City of New York. The employee then retired. 

When the amount of the deferred salary increase was not included in the calculation of the employee’s final average salary for retirement purposes, Kivo sued.

The Appellate Division ruled that a public employer may not agree through a collective bargaining agreement to give retirement benefits that are contrary to state law.

The Retirement and Social Security Law provided that deferred or suspended wages, the payment of which depended upon the occurrence of some future event, are not includable for the purposes of calculating final average salary for retirement.

The Court of Appeals, in affirming the Appellate Division [see 50 N.Y.2d 1017], expressed no opinion as to the result had the deferred payments actually been made to Kivo prior to her retirement “for this question is not presented by the facts of this case”.

This suggests that had Kivo actually received the payment, even as a lump sum, before retirement, the court would have permitted the amount received to have included in the calculation of final average salary.

Residence in a jurisdiction as a qualification for appointment


Residence in a jurisdiction as a qualification for appointment
Op St Comp 80-11

The State Comptroller has issued an opinion indicating that an employee of a municipal Department of Sanitation may not be required to reside in the municipality.

The Comptroller noted a section of the Public Officers Law that excepted sanitation workers from automatic removal from their position if they cease to be a resident of the municipality.

Failure to admit having a criminal conviction results in removal from state job


Failure to admit having a criminal conviction results in removal from state job

An arbitrator held that the State acted properly when it removed an employee form his position upon discovery that he had failed to report his earlier conviction on the application form for his job.

The employee had indicated that he had never been convicted when in fact he had been convicted of a number of crimes.

The Civil Service Law (Section 50.4) provides for the removal of an employee found to have falsified his application form. In such cases the law requires that the employee be given an opportunity to explain the matter before being removed from the position.

It appears that the reason for the employee’s removal was the falsification of the information on the application form, not the fact that he had earlier been convicted.

Generally the employee or applicant having a criminal conviction in his record may not be barred from employment unless the offense is found to be job related and has a potential for a breech of faith or a related problem.

For example, conviction for illegal possession of a drug might be a basis for disqualifying a person seeking a position in a pharmacy where controlled substances and drugs are typically available for dispensing but probably would not be relevant in connection with a clerical position in an office.

November 23, 2011

Transfer of leave credits between jurisdictions may be permitted


Transfer of leave credits between jurisdictions may be permitted
Op St Comp 79-610

The State Comptroller has issued an opinion in which he states that a town may permit employees who transfer to the town from another municipal employer to bring all or some of their annual and sick leave credits with them.

Such a procedure may be authorized by a local law, provision of the controlling collective bargaining agreement or a resolution.

Employer rejects disciplinary hearing officer's recommendation as to the penalty to be imposed


Employer rejects disciplinary hearing officer's recommendation as to the penalty to be imposed
Matter of Stanziale, 77 A.D.2d 600

An employee not entitled to notice and hearing pursuant to §75 of the Civil Service Law was terminated because of an incident that took place while at work.

He then was able to get a court order directing that the employer provide him with an opportunity to refute the allegations that resulted in his dismissal. A hearing was held and the hearing officer recommended that the penalty to be imposed be a six-month suspension without pay.

The appointing officer declined to follow the recommendation of the hearing officer and dismissed the employee, again. The employee went back to court and obtained an order directing his reinstatement on the grounds that the decision of the appointing officer was arbitrary and capricious.

Ultimately the Appellate Division ruled that although the employee was not entitled to a hearing under the Civil Service Law or the controlling collective bargaining agreement, as the basis for dismissal was of a stigmatizing nature, he was entitled to due process.

However, that was the extent of the relief to which Stanziale was entitled. As there was a rational basis for the appointing officer rejecting the recommendation of the hearing officer and dismissing the employee for the offense, the court held that the termination was neither arbitrary nor capricious and was made in good faith.

This case appears to be one of a number decided in recent years where a person not entitled to a hearing as a matter of law or contract can demand one if dismissed for what a court would view as reasons tending to stigmatize the individual.

However, if the terminated employee is vindicated as the result of a “name clearing” hearing a court may direct that the individual be reinstated where it finds that the appointing authority’s  decision to remove the employee, or possibly even the implementation of a lesser penalty, was arbitrary.

Salary due estate of deceased employee



Salary due estate of deceased employee
Op St Comp 79-881

The State Comptroller has advised that a pay check payable to a deceased employee is to be returned to the fund from which it was drawn and then paid to the person legally entitled to receive the money.

November 22, 2011

The public policy exception considered by the courts reviewing an arbitrator’s award not absolute and the issues being decided or the relief granted must be considered

The public policy exception considered by the courts reviewing an arbitrator’s award not absolute and the issues being decided or the relief granted must be considered
City School Dist. of the City of New York v McGraham,  2011 NY Slip Op 08228, Court of Appeals

A tenured high school teacher was served with disciplinary charges pursuant to Education Law §3020-a alleging she engaged in improper conduct with a 15-year-old male student when she corresponded with the student electronically after regular school hours.

Although it was alleged the correspondence involved “a variety of personal matters and tried to discuss with him the nature of their relationship, which, in her view, was potentially romantic,” there was no physical contact, let alone a physical relationship, between the two and none of her communications were of a sexual nature.” Further, the two never met outside of school grounds.

The hearing officer found the teacher guilty of three of the five specifications preferred against her. In addition, the hearing officer determined that the teacher had engaged in inappropriate communications of an intimate nature with the student, which activities constituted conduct unbecoming her position as a teacher.

Considering that the teacher was remorseful for her conduct and that she sought therapy soon after her behavior came to light, the hearing officer, believing that teacher would repeat such conduct, a penalty of a 90 day suspension without pay and reassignment to a different school upon her reinstatement.

The New York City School District filed an Article 75 petition seeking to vacate the arbitration award, contending that the penalty imposed was irrational and contrary to the public policy of protecting children.*

Affirming the Appellate Division ruling, the Court of Appeals rejected the School District’s and held that the arbitration award did not violate public policy. Explaining that courts will only intervene in the arbitration process in those "cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator," the Court of Appeals said that “[l]ooking at the award on its face, it cannot be said that either statutory or common law prohibits the penalty imposed by the hearing officer.”

The court indicated that although it cannot be disputed that the State has a public policy in favor of protecting children, this is not the type of absolute prohibition from arbitrating a "particular" matter necessary to invoke the public policy exception and to overturn the arbitral resolution.

In addition, the court found that the arbitration award was not arbitrary and capricious or irrational in that the hearing officer “engaged in a thorough analysis of the facts and circumstances, evaluated [the teacher’s] credibility and arrived at a reasoned conclusion that a 90-day suspension and reassignment was the appropriate penalty.”

In this instance, said the court, the penalty imposed was rational. Notwithstanding the “serious misconduct” of the teacher, in this case the hearing officer, finding the teacher remorseful and that her actions were unlikely to be repeated, concluded that her termination was not mandated.

Although, said the Court of Appeals, “reasonable minds might disagree over what the proper penalty should have been” this disagreement does not provide a basis for vacating the arbitral award or refashioning the penalty.

* In the course of these appeals the teacher was terminated because she allowed her teacher's certification to lapse. However, the Court of Appeals, citing Brooklyn Audit Co. v Department of Taxation & Fin., 275 NY 284, said that as the School District sought to terminate the teacher pursuant to §3020-a “in an effort to prevent her from being in a position to obtain future employment with the Department of Education,” the appeal was not moot.

Independent determination needed by town board

Independent determination needed by town board
Ross v. Town Board of the Town of Ramapo, 78 A.D.2d 656

A police officer was injured in a fall. His application for an accidental disability retirement allowance under the Retirement and Social Security Law was denied by the Retirement System. The Town of Ramapo continued to pay the officer’s full salary (see Section 207-a, General Municipal Law) until the Town Board passed a resolution terminating the employment almost four years later.

The Board had relied upon the determination by the Retirement System that the injury was not service related. The Court ordered the police officer reinstated, holding the Board’s action did not provide the required due process.


The critical issue appears to be that the Retirement System had not made a “final determination” and the Board would have to make an independent determination as to the job-relatedness of the injury. The Court said “(the Board cannot) deny these (Section 207-a) benefits...based upon the finding of another State agency ... not yet final and which is predicated upon a different standard of proof”.

The decision in Economico (50 NY2d 120) was distinguished in this case. In Economico the injury involved was conceded not to be service related. This decision suggests that the employer must take independent action to remove a police officer from the payroll when it believes that the injury was not service related within the meaning of Section 207-a.

Police sick-out violates Taylor Law

Police sick-out violates Taylor Law
Police Benevolent Association of the City of Yonkers v. New York State Public Employment Relations Board, 51 N.Y.2d 779

The Court of Appeals upheld PERB’s ruling that the Yonkers Police Union was involved in an illegal.

PERB had found the Union had supported or condoned two “sick-outs.”  

While the court said the mere showing that a significant number of union members have engaged in a strike would not be sufficient to prove a violation of the Taylor Law by the Union, statements of union leaders, combined with the fact of the strike itself and the other evidence adduced at the hearing held by PERB was sufficient to provide “substantial evidence” of the violation.



Validation requirements for civil service test

Validation requirements for civil service test
Guardians v. Civil Service Commission, 23 FEP Cases 909

The Circuit Court of Appeals for the 2nd Circuit (New York) has rejected a rigid and literal application of the EEOC Guidelines on test validation.

The Court adopted a “functional” approach, holding an acceptable content validation study may consist of a suitable job analysis, reasonably competent examiners, a relationship between the test content and the job and a scoring system which can be used to select from those better able to do the job.

In addition, the Court indicated that permissible use of rank ordering requires a demonstration that the point differences used reflect differences in job performance.



November 21, 2011

Negotiating job security provisions in the course of collective bargaining

Negotiating job security in the course of collective bargaining
Johnson City Professional Firefighters Local 921, 18 NY3d 32

Frequently an employee organization will attempt to include a “job security provision in the collective bargaining agreement by having a “no layoff” clause in the agreement. The impact of such a provision was considered by the Court of Appeals in the Johnson City Professional Firefighters Local 921 case.

The Village of Johnson City and Johnson City Professional Fire Fighters, Local 921 IAFF executed a collective bargaining agreement (CBA) containing a “no-layoff clause” that provided as follows:

     “A. The Village shall not lay-off any member of the bargaining unit during the term of this contract.

     “B. The Village shall not be required to 'back fill' hire additional members to meet staffing level of expired agreement."

The parties further agreed that disputes concerning the interpretation of this clause, and any other provision of the CBA would ultimately be subject to arbitration before the Public Employment Relations Board (PERB).

When the Village abolished a number of positions, including six firefighter positions due to “budgetary necessity,” the union, pointing to the no-layoff clause, filed a grievance with the Village. The Village denied the grievance and Local 921 sent the Village a notice of its intent to arbitrate. Local 921 then filed a petition seeking a court order barring the Village from terminating the six firefighters pending a determination through arbitration. Simultaneously, the Village brought a proceeding to stay any arbitration.

Supreme Court and the Appellate Division both held that the no-layoff clause was not subject to any prohibition against arbitration and that, given the CBA's broad grievance and arbitration provision, the issue was arbitrable (see 72 AD3d 1235, 1237-1238 [3d Dept 2010]). The Court of Appeals reversed the lower courts’ rulings.

The Court of Appeals agreed with the Village’s contention that the termination of the six fire fighters did not fall within the no-layoff clause and therefore was not arbitrable under the contract. Citing Matter of Board of Educ. of Yonkers City Sch. Dist. v Yonkers Fedn. of Teachers, 40 NY2d 268, the court explained that “Not all job security  clauses are valid and enforceable, nor are they ‘valid and enforceable under all circumstances’"

In Yonkers Fedn. of Teachers, the Court of Appeal held that a "job security clause that provided that "During the life of this contract no person in this bargaining unit shall be terminated due to budgetary reasons or abolition of programs but only for unsatisfactory job performance and provided for under the Tenure Law, was ”explicitin its protection of the [workers] from abolition of their positions due to budgetary stringencies."

In contrast, in Yonkers School Crossing Guard Union of Westchester Ch., CSEA v City of Yonkers [Crossing Guard Union], 39 NY2d 964, the Court of Appeals concluded that the CBA’s clauses providing that "Present members may be removed for cause but will not be removed as a result of Post elimination" did not constitute a "job security" provision similar to those used Yonkers Fedn. of Teachers, and held the language in Crossing Guard Union was ambiguous.

Similarly, in the Local 921 case the Court of Appeals concluded that the no-layoff clause in its CBA was not arbitrable because it was not “explicit, unambiguous and comprehensive.”

The Court of Appeals explained that as a matter of public policy, "job security clauses must meet a stringent test. In the event a municipality bargains away its right to eliminate positions or terminate or lay off workers for budgetary, economic or other reasons, the parties must explicitly agree that the municipality is doing so and the scope of the provision must evidence that intent. Otherwise, said the court, a municipality's budgetary decisions will be routinely challenged by employees, and its ability to abolish positions or terminate workers will be subject to the whim of arbitrators.

The Court of Appeals set out the following three prongs test that must be met in order to demonstrate that the job security  provision in a collective bargaining agreement does not violate public policy.

  1. The provision is "explicit;"
  1. The CBA extends for a "reasonable period of time;" and
      3.  The CBA was "negotiated in a period of a legislatively declared financial emergency between parties of unequal bargaining power." 

As the clause relied upon by Local 921 did not explicitly protect the firefighters from the abolition of their positions due to economic and budgetary stringencies, the court ruled that it was ambiguous and thus did not constitute an “explicit” provision barring such layoffs.

In the words of the Court of Appeals, “Simply put, because the clause [was] not explicit, unambiguous and comprehensive, there is nothing for the Union to grieve or for an arbitrator to decide. Having concluded that this dispute is not arbitrable for reasons of public policy, we need not reach the issue of whether the parties agreed to arbitrate.”

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