Appealing an Education Law Section 3020-a arbitration award

Appealing an Education Law Section 3020-a arbitration award
Tarasow v NYC Dept. of Educ., 21 Misc 3d 1113(A)

Helen Tarasow, a tenured a guidance counselor employed by the New York City Department [DOE], was ordered removed from her school and subsequently disciplinary charges were filed against her alleging [1] that Tarasow failed to notify school authorities and parents of a12-year-old student counseled by her that the student exhibited “intentionally made scratches or cut marks on her wrists,” and [2] Tarasow failed to keep proper files and records for each assigned student, or to properly monitor and document students' progress and results of guidance interventions. A hearing on the charges pursuant to Education Law § 3020-a was held and the arbitrator concluded that:

1. DOE had proved the first specification, noting among other things, that a self-inflicted series of "cuts," "would certainly raise grave suspicion as to the mental state of the person," and that Tarasow should have reported her suspicion rather than allowing the child to go home alone; and

2. Although Tarasow has had "some training in psychotherapeutic counseling," she wrongly usurped the role of a psychiatrist or psychologist instead of reporting the self-inflicted cuttings, and that it was irrelevant that the psychiatric evaluation found the student not to be suicidal given his finding that Tarasow lacked the authority and was not empowered to make a determination about the student's mental status.

3. Tarasow proved that her files were likely discarded.

The Arbitrator concluded that "is no doubt [Tarasow] is a caring, dedicated Guidance Counselor," that her actions "were not borne of neglect," that she "truly believed she was doing the right thing," and that terminating her employment would "deprive the students of an individual who can and does provide effective counseling to students." However, noted the Arbitrator, Tarasow expressed no remorse for her actions, but only a "grudging acceptance of the requirement to do [the right thing] to stay out of trouble."

DOE asked that Tarasow be terminated; Tarasow asked that a non-monetary penalty be imposed.

The penalty imposed by the arbitrator: a two-month suspension without pay, so as to "produce a real change in her behavior" and both DOE and Tarasow filed petitions pursuant to CPLR Section 7511 seeking to vacate an arbitrator's decision.

Justice Feinman, after considering the petition by Tarasow and the cross-petition by the DOE to vacate the arbitrator's awards, denied both petitions and confirmed the arbitrator’s award.

The decision sets out a “Legal Analysis” of CPLR Article 75, which controls in situations involving a challenge to an arbitration award. The court noted that CPLR 7511(b) sets forth the limited grounds on which a petitioner can seek to vacate an award, namely misconduct by the arbitrator, partiality, exceeding the arbitrator’s powers, or procedural error.

Citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, the decision state that “Judicial review of arbitration awards is extremely limited and where the arbitration hearing is conducted pursuant to Education Law §3020-a, judicial review is limited to the grounds set forth in CPLR 7511.

Further, where the parties are required to engage in compulsory arbitration, as occurred in the instant matter, judicial review under CPLR article 75 requires that the award "must have evidentiary support and cannot be arbitrary and capricious" and the determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78. "The test of whether a decision is arbitrary or capricious is "determined largely by whether a particular action should have been taken or is justified . . . and whether the administrative action is without foundation in fact.'" (See Pell v Board of Educ., 34 NY2d 222].

Other points made by Justice Feinman:

1. A reviewing court must defer to the administrative fact finder's assessment of the evidence and the credibility of the witnesses

2. In an Education Law Section 3020-a proceeding, the arbitrator is free to fashion a remedy as he or she believed proper, referring to the ruling of the Court of Appeals in Silverman v Benmor Coats, Inc., 61 NY2d 299.

3. As to DOE's petition seeking vacatur of the award on the ground that it was irrationally lenient, it must be denied based in part on the credibility finding of the arbitrator that Tarasow is a dedicated guidance counselor and a benefit to her students, and on the evidence in the record that she has always had satisfactory ratings in her job. His implicit finding that she was guilty of bad judgment on this one occasion is rationally based.

4. The arbitrator rationally credited Tarasow's statement that in the future, she would immediately report any similar incident, as sufficient proof that no matter what her personal thoughts might be in a situation, she would follow the DOE rules.

5. The award of an arbitrator need not conform to the traditional relief that a court might

N.B. Section 3020-a.5 sets out a very short statute of limitations to appeal a Section 3020-a arbitrator’s decision. Subdivision 5 provides as follows: 5. Appeal. Not later than ten days after receipt of the hearing officer's decision [emphasis supplied], the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seven thousand five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

In contrast, CPLR Section 7511 provides that “An application to vacate or modify an award may be made by a party within ninety days after its delivery ….”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52066.htm

Continuation on leave of absence from a teaching position upon permanent appointment to a classified service position critical to educator’s right to reinstatement to the teaching position

Continuation on leave of absence from a teaching position upon permanent appointment to a classified service position critical to educator’s right to reinstatement to the teaching position

Fehlhaber v Board of Educ. of Utica City School Dist., 2012 NY Slip Op 04904, Appellate Division, Fourth Department

Craig S. Fehlhaber was initially employed by the Utica City School District as a tenured teacher. In 1997 the district appointed Fehlhaber as "Clerk of the Works" and later as Superintendent of Buildings and Grounds.

In 2010 the Board abolished the position of Superintendent of Buildings and Grounds and Fehlhaber asked to be "bump" vertically into the position of Maintenance Foreman or, in the alternative, to resume a teaching position. The Board denied both of these requests and Fehlhaber filed an Article 78 petition seeking a court order directing the Board to place him in one of those positions. Supreme Court dismissed his petition and Fehlhaber appealed..

Initially the Appellate Division resolved a procedural issue.

Supreme Court had ruled that Fehlhaber had failed to file a timely notice of claim. However, the Appellate Division agreed with Fehlhaber that “no notice of claim was required” in this instance.

Although, said the court, Education Law §3813(1) mandates that a notice of claim be filed when a claim is asserted against a board of education, "the notice of claim requirement is inapplicable to cases which seek to vindicate tenure rights which are legal rights guaranteed by State law and in the public interest," citing Cowan v Board of Educ. of Brentwood Union Free School Dist., 99 AD2d 831 and other decisions.

That said, the Appellate Division held that Supreme Court had properly dismissed the petition on the merits. Although Fehlhaber contended that he was entitled to a vertical "bump" into the position of Maintenance Foreman pursuant to Civil Service Law §80(6), the court noted that the record established that the Utica Municipal Civil Service Commission, after consulting with the New York State Civil Service Commission, said that "[i]n order for the rights of bumping' to exist, the [Fehlhaber] would have to demonstrate a legal entitlement to that bumping right.”

The Utica Commission, however, determined that Fehlhaber did not have any such bumping right. 

Here, said the court, in a case concerning an employee's bumping rights under the Civil Service Law, Matter of Hughes v Doherty, 5 NY3d 100, the Court of Appeals ruled that "judicial review of [the Commission's] classification system and determinations are limited to whether there was a rational basis for the agency's conclusion.... Unless the [Commission's] determinations were arbitrary or capricious, a court should not undermine its actions."

As the Appellate Division found that Fehlhaber failed to establish that the Commission's determination was arbitrary or capricious, or that there was no rational basis for its determination, it sustained the Supreme Court’s dismissal of his Article 78 petition on the merits.

Fehlhaber had raised an alternative theory  -- that he is merely on a leave of absence* from his tenured teaching position and was thus entitled to be reinstated to that position. The Appellate Division said that it agreed with Supreme Court that “[Fehlhaber] voluntarily abandoned his teaching position and thereby relinquished his tenure rights, at the latest, upon leaving the position for which the leave of absence was approved.”

Although it is well settled that "[t]he burden of proving abandonment is upon the [Board] and must be established by clear and convincing evidence that the [educator], by a voluntary and deliberate act, intended to relinquish [his or] her teaching position and forfeit [his or] her tenure rights," in this instance the Board granted Fehlhaber a leave of absence in 1997 "[t]o assume duties as Clerk of the Works."

When Fehlhaber left the Clerk of the Works position in 2002, he received a permanent appointment to the position of Superintendent of Buildings and Grounds, a position in the classified service, and he failed to seek reinstatement as a teacher or an extension of his leave of absence when he received that permanent appointment.

* 4 NYCRR 5.2, Leaves of Absence, applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Subdivision (c) provides as follows: (c) Successive leaves of absence. Where a leave of absence without pay has been granted for a period which aggregates two years, or more if extended pursuant to subdivision (b) of this section, a further leave of absence without pay shall not be granted unless the employee returns to his position and serves continuously therein for six months immediately preceding the subsequent leave of absence. Many local civil service commissions have adopted a similar rule.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04904.htm

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Judge found to have presided over judicial matters involving persons with whom he had a “close relationship” removed from office

Judge found to have presided over judicial matters involving persons with whom he had a “close relationship” removed from office
Matter of Young, 2012 NY Slip Op 05089, Court of Appeals

The State Commission on Judicial Conduct sustained six charges of misconduct alleged against Lafayette D. Young, Jr., a Justice of the Macomb Town Court, St. Lawrence County, finding that he had engaged in serious misconduct when he presided over matters involving persons with whom he and his paramour had close relationships. The Commission determined that Judge Young should be removed from his office.*  

The Commission found that “In all cases, but one, [Judge Young] neither disqualified himself nor disclosed [his] relationship to the defendant or complaining witness. Additionally, in many of the cases at issue, Judge Young’s conduct gave the appearance of favoritism towards the Petrie family defendant or complaining witness.”

Moreover, the Court of Appeals said that  "ex parte communications with[certain] parties further exacerbated Judge Young's improper conduct as they highlight his close relationships to the Petrie family and his partiality towards them."

Holding that "Such conduct demonstrates a misuse of his judicial office and damages public confidence in his integrity and impartiality," the Court of Appeals sustained the sanction imposed by the Commission: that Judge Young, removal from his position, as the appropriate penalty under the circumstances.

* See New York Constitution, Article VI, § 22; Judicial Law §44

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05089.htm

Changing the method of testing employees for the use of illegal drugs constitutes a “procedure” that is a mandatory subject of collective bargaining

Changing the method of testing employees for the use of illegal drugs constitutes a “procedure” that is a mandatory subject of collective bargaining
City of New York v Patrolmen's Benevolent Assn. of the City of New York, Inc., 56 AD3d 70

On August 1, 2005, NYPD unilaterally discontinued using urinalysis as its preferred method of random drug screening of its police personnel in favor or using a type of hair follicle testing known as radioimmunoassay of hair (RIAH). The Detectives Endowment Association filed an improper practice petition with the New York City Office of Collective Bargaining (OCB) on behalf of itself, the Patrolmen's Benevolent Association and the Sergeants Benevolent Association (the unions) contending that by unilaterally changing the drug testing method, NYPD violated New York City Collective Bargaining Law §12-306(a)(4) (Administrative Code, Title 12, Chapter 3).

OCB granted the unions' petition, finding that NYPD violated New York City Collective Bargaining Law "by unilaterally changing drug testing procedures, a mandatory subject of bargaining." Although NYPD argued that probationary police officers were subject to hair follicle testing for illegal drugs, OCB said that "even if NYPD's procedures for hair testing are the same as applied to a subset of employees already subject to such testing, the expansion of the categories of employees to whom the procedures now are applied constitutes a unilateral change in drug screening procedures." The City appealed OCB’s ruling contending that OCB’s determination was arbitrary and capricious,

The Appellate Division, disagreed, rejecting the City of New York’s argument that its changing the method of random drug testing utilized by NYPD for the screening of police officers from urinalysis to hair analysis is exempt from collective bargaining because it involves the disciplinary authority of the Police Commissioner, as conferred by New York City Charter §434 and Administrative Code of the City of New York §14-115.

Pointing out that the Administrative Code provision gives the Commissioner's investigatory authority arises only after written charges have been preferred and reasonable notice of the alleged infraction has been given, the court concluded that “no persuasive policy reason has been advanced to require OCB to depart from its prior decisions, which have consistently found that routine drug screening procedures are a mandatory subject of collective bargaining.”

The Appellate Division said that the City attempted to avoid its obligation to engage in collective bargaining with respect to the methods used for the routine drug testing of NYPD members by extending the investigatory authority granted to the Commissioner beyond the context of formal disciplinary proceedings to which it is confined. It then reversed the judgment of the Supreme Court, New York County that had granted the City’s petition and annulled OCB’s determination and reinstated OCB's ruling on its finding that the City failed to negotiate concerning a mandatory subject of collective bargaining.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07798.htm

Continuation of employment upon the expiration of a contract of employment may not be automatic

Continuation of employment upon the expiration of a contract of employment may not be automatic
Goldman v White Plains Ctr. for Nursing Care, LLC, 11 NY3d 173

Some public employments, typically those involving employment in a position having academic rank at a public college or university [see, for example 4 NYCRR 335.10] or as a school superintendent or an associate school superintendent, [see, for example, Education Law §§1711(3) and 2507(1)], are controlled by employment contracts between the parties.

The issue to be resolved in the Goldman case was whether the expiration of a two-year employment contract gives rise to successive one-year implied “common law” contracts of employment when the employee continues working for the employer without a new agreement in place. In this instance the Court of Appeals concluded that Lorraine Goldman became an at-will employee at the end of the two-year period and did not enjoy any “successive one-year implied contract of employment with White Plains.

Goldman’s initial contract of employment, executed in 1990, provided that the parties would "enter into good faith negotiations . . . with respect to renewal of th[e] Agreement on mutually agreeable terms" no less than nine months before the contract was due to expire.” The agreement could be terminated by the mutual consent of the parties or "[b]y either party giving notice to the other at least six (6) months prior to the end of the Employment Period of its intention not to renew this Agreement." At expiration of the contract or termination of employment, the employer would "be released of any responsibility or obligation hereunder, except for payment of salary and benefits accrued to the effective date of such expiration or termination." Finally, the contract included a provision that stated it was the "entire Agreement and understanding" of the parties and could "not be changed, modified or amended, except by a writing signed by" Goldman and her then employer.

During the course of the two-year term, Goldman and her employer did not discuss renewal of the agreement and neither sent a notice of termination. After the contract expired on March 31, 1992, Goldman continued to serve as the facilities’ administrative director and received annual salary adjustments. However the facilities were purchased by White Plains Center for Nursing Care, LLC and NMC Acquisitions, LLC (White Plains) from Goldman’s initial employer in October 2004. In conjunction with that transaction, White Plains Center executed an assignment and assumption of contracts, which listed Goldman’s 1990 employment contract among the documents provided to the purchasers. Three months later, White Plains Center terminated Goldman's employment.

In deciding Goldman’s breach of contract action, the Appellate Division concluded that the application of an implied contractual arrangement after expiration of the two-year term was inconsistent with the express language of the original employment agreement. The Court of Appeals agreed, holding that “A fundamental tenet of contract law is that agreements are construed in accordance with the intent of the parties and the best evidence of the parties' intent is what they express in their written contract.”

Goldman’s contract provided that in the event the agreement was allowed to expire at the conclusion of the two-year term, her then employer would have no further obligations to her other than compensating her for accrued salary and benefits. Further, said the court, the contract “unambiguously indicate that the parties understood that the employment contract would end at the conclusion of the two-year period unless an extension was agreed upon.”

Rejecting Goldman’s argument that under “common law” she had a one-year implied contract on the same terms as set forth in the original agreement each year that her employment continued after the expiration of the written contract, the Court of Appeals held that “this contention conflicts with the well-established rule that, ‘absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party.’”

The court then pointed out that Goldman’s argument relies on a common-law rule that recognizes an inference that parties intend to renew an employment agreement for an additional year where the employee continues to work after expiration of an employment contract. In a footnote, the Court of Appeals explained that “The common law created a presumption of a new term of employment of only one year to avoid a statute of frauds problem.”

However, said the court, this common-law presumption — developed in the 19th century before the establishment of the employment-at-will doctrine — can be rebutted by demonstrating that the parties did not intend to allow a contract to renew automatically.

In this instance, said the court, Goldman’s employment became an at-will arrangement upon the expiration of the agreement under the terms of the contract itself on March 31, 1992 and thus White Plains was entitled to summary judgment dismissing the breach of contract claim.

The Court of Appeals then observed that “Parties to future contracts can avoid uncertainty regarding application of the common-law rule simply by specifying that continuation of the employment relationship after the expiration of the contractual period will result in either successive one-year extensions of employment or at-will employment status.”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07760.htm

Testing positive for alcohol at the workplace

Testing positive for alcohol at the workplace

OATH Index No. 1405/12

OATH Administrative Law Judge Tynia D. Richard recommended a 30-day suspension* for a sanitation worker who tested positive for alcohol in a random workplace test.

The employee contended that the positive test was caused by ingestion of herbal supplements that unbeknownst to him contained alcohol.  

Judge Richard found that there was no evidence that the amount of alcohol in the supplements was sufficient to trigger a positive breath test, particularly when the confirmatory test administered  22 minutes after the initial screen test also was positive. 

The decision is posted on the Internet at: 

Dep’t of Sanitation v. Anonymous (in PDF), OATH Index No. 1405/12

* The Commissioner imposes followup drug/alcohol testing in addition to the 30-day suspension.

Governor Cuomo signs legislation on public disclosure of teacher evaluations that protects teachers' right to privacy and parents' right to know

Governor Cuomo signs legislation on public disclosure of teacher evaluations that protects teachers' right to privacy and parents' right to know

Chapter 68 of the Law of 2012

On June 25, 2012 Governor Andrew M. Cuomo signed legislation that will require the public disclosure of teacher evaluation data. The Governor said that this new law, which takes effect July 1, 2012, “ensures that parents and the general public can assess how schools across New York are performing.”

According to the Governor, this new law requires school districts and BOCES to fully disclose their evaluation results to the public and require requires the State Education Department to post and make widely available important data that will allow the public to analyze and compare how schools are performing. School districts and BOCES will also be required to notify and fully disclose to parents and legal guardians the final specific ratings and composite evaluation scores of the teachers and principals to which their student is assigned.

The law amends §3012-c of the Education Law by adding a new subdivision, Subdivision 10, to read as follows:

10. Each school district and board of cooperative educational services shall fully disclose and release to the public and the department the final quality ratings and composite effectiveness scores from the annual professional performance reviews of its teachers and principals as provided in this subdivision.

 a. The commissioner shall fully disclose professional performance review data for teachers and principals in each school district and board of cooperative educational services on the department website and in any other manner to make such data widely available to the public. Such data shall be suitable for research, analysis and comparison of professional performance review data for teachers and principals. Such public disclosure shall include but not be limited to the final quality ratings and composite effectiveness scores by school district for principal evaluation data, by school building for teacher evaluation data and, within each district and school building, by class, subject and grade; final quality ratings and composite effectiveness scores by region, district wealth, district need category, student enrollment, type of school (i.e. elementary, middle and high school), student need (e.g., poverty level), and district spending; final quality ratings and composite effectiveness scores by the percentage or number of teachers and principals in each final quality rating category, moving to a higher rating category than the previous year, moving to a lower rating category than the previous year, and retained in each rating category; and data on tenure granting and denial based on the final quality rating categories.

b. Each school district and board of cooperative educational services shall fully disclose and release to the parents and legal guardians of a student the final quality rating and composite effectiveness score for each of the teachers and for the principal of the school building to which the student is assigned for the current school year upon the request of such parents and legal guardians. The governing body of each school district and board of cooperative educational services shall provide conspicuous notice to parents and legal guardians of the right to obtain such information. Parents and legal guardians may review and receive such data in any manner, including by phone or in person; shall receive an oral or written explanation of the composite effectiveness scoring ranges for final quality ratings; and be offered opportunities to understand such scores in the context of teacher evaluation and student performance. Reasonable efforts shall be made to verify that any such request is a bona fide request by a parent or guardian entitled to review and receive such data pursuant to this paragraph.

c. The department and each school district and board of cooperative educational services shall ensure that any release to the public of annual professional performance review data, or any other data that is used as a component of annual professional performance reviews, does not include personally identifying information for any teacher or principal, provided, however, that nothing shall impair the right of parents and legal guardians to review and receive the final quality rating and composite effectiveness score of individual teachers and principals as provided in paragraph b of this subdivision. Annual professional performance reviews of individual teachers and principals shall not be subject to disclosure pursuant to article six of the public officers law.

d. Nothing in this subdivision shall prohibit the department from collecting such data and materials from school districts and boards of cooperative educational services as is necessary to carry out its functions and duties, including its responsibilities related to the federal Race to the Top program.

Disagreement with a superior’s directive not a defense to disciplinary charges alleging insubordination

Disagreement with a superior’s directive not a defense to disciplinary charges alleging insubordination

OATH Index No. 196/12

OATH Administrative Law Judge Faye Lewis found that a correction officer had been insubordinate on two dates and recommended a 10-day suspension.

In the first instance, the employee refused to open a security gate when ordered to do so by a superior officer. He also he refused to relinquish his post to another officer when ordered.

The correction officer disagreed with the order to report to a different post, but ALJ Lewis found this was not a defense because respondent was required to follow direct orders. 

The decision is posted on the Internet at:  

Dep’t of Correction v. Joseph (in PDF)

The filing of a timely a notice of claim -- a “condition precedent” when suing a school district – must be pleaded in the complaint

The filing of a timely a notice of claim -- a “condition precedent” when suing a school district – must be pleaded in the complaint
Munro v Ossining Union Free School Dist., 55 AD3d 697

Dianne Munro was employed as the Purchasing and Accounts Payable Manager by Ossining Union Free School District. In April 2007 she commenced this action against the District under New York State's Human Rights Law (Executive Law §296) seeking to recover damages for alleged employment discrimination on the basis of race and sex.

The District filed a pre-answer motion to dismiss Munro’s petition on the grounds that the claims were barred by the statute of limitations (see Education Law §3813[2-b]) and that she had failed to timely serve a notice of claim (see Education Law §3813[1]). Munro opposed the District’s motion and cross-moved for permission to serve a late notice of claim. The Supreme Court granted the District's motion to dismiss the complaint and Munro’s motion to for leave to serve a late notice of claim. Munro appealed.

The Appellate Division first addressed the notice of claim issue, observing that an entity wishing to sue a school district for violations of the Human Rights Law must serve a notice of claim on the district within three months after accrual of the claim. Further, compliance with this requirement is a condition precedent to such a lawsuit and must be pleaded in the complaint.
In the event the entity has not served a timely notice of claim, if the one-year statute of limitations applicable to such actions has not run, the entity may seek permission to serve a late notice of claim in accordance with Education Law § 3813[2-a]).

A court, in determining whether, in its discretion, to grant such an application, must consider (1) whether the district had actual knowledge of the essential facts constituting the claim within the time required for service of a timely notice of claim or a reasonable time thereafter, (2) whether the claimant had a reasonable excuse for failing to serve a timely notice of claim, and (3) whether the school district would be substantially prejudiced in its defense on the merits if the application were to be granted.

Further, the statute requires that the court consider "in particular," the first factor, and, accordingly, that factor is entitled to the greatest weight, but none is determinative.
Here Munro argued that the District had actual knowledge of the essential facts constituting her claim because she allegedly reported various incidents. However, Munro did not provide any details about the substance of her alleged reports that would permit a record-based conclusion that the District was thereby put on notice of the essential facts underlying her current claims under the Human Rights Law.

Further, the Appellate Division said that Munro offered no excuse at all for failing to serve a timely notice of claim.

Accordingly, even if the District would not be prejudiced were the application to file a late notice of claim granted, the Supreme Court did not improvidently exercise its discretion in denying Munro leave to serve a late notice of claim.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07886.htm

Union rather than officers or board members to acknowledge it does not assert the right to violate the Taylor Law

Union rather than officers or board members to acknowledge it does not assert the right to violate the Taylor Law
New York City Tr. Auth. v Transport Workers Union of Am., AFL-CIO, 55 AD3d 699

Supreme Court [see 18 Misc.3d 414] issued an order conditioning the reinstatement of the Transport Workers Union’s right to payroll deductions for union dues from the paychecks of their members employed by the New York City Transit Authority by requiring affidavits from the President and each individual member of the Executive Board of Local 100 of Transport Workers Union of America, AFL-CIO, stating that “the Union does not assert the right to strike against any government, to assist or participate in any such strike, or to impose an obligation to conduct, assist, or participate in such a strike, and that the Union has no intention, now or in the future, of conducting, assisting, participating, or imposing an obligation to conduct, assist, or participate in any such strike, or threatening to do so, against the [Transit Authority] or any governmental employer.”

The Union appealed and the Appellate Division modified the lower court’s order “on the facts and in the exercise of discretion, by requiring “the Union submit a duly-authorized affirmation stating unequivocally that the Union does not assert the right to strike against any government, to assist or participate in any such strike, or to impose an obligation to conduct, assist, or participate in such a strike, and that the Union has no intention, now or in the future, of conducting, assisting, participating, or imposing an obligation to conduct, assist, or participate in any such strike, or threatening to do so, against the [Authority] or any governmental employer” rather than require the Union’s president and board members to so state.

The Appellate Division explained that the Civil Service Law Article 14, [the Taylor Law], prohibits public employees and public employee organizations from engaging in, or causing, instigating, encouraging, or condoning, a strike and in the event this prohibition is violated, the Public Employment Relations Board or the Supreme Court may order the forfeiture of the organization's right to have union dues automatically deducted from the paychecks of its members.

However, said the court, the Supreme Court improvidently exercised its discretion in requiring that each member of the Union's Executive Board submit an affidavit containing the same statement that the Union does not assert the right to violate the Taylor Law. Reinstating the automatic deduction should depend, not only on the Union's full compliance with the appropriate orders of the court but “also on its willingness to state that it has no intention of engaging or supporting illegal strikes now or in the future.”

Accordingly, it is the Union, rather than its officers or board members, which is required to undertake this obligation.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07887.htm

See, also, MTA Bus Co. v Transport Workers Union of Am., AFL-CIO, 55 AD3d 695, decided the same by the Appellate Division, Second Department concerning the same issue. The text of the MTA decision is posted on the Internet at:
thttp://www.courts.state.ny.us/reporter/3dseries/2008/2008_07883.htm

Audits of special education contractors by the State Comptroller reveal the use of public funds for inappropriate and unallowable expenses

Audits of special education contractors by the State Comptroller reveal the use of public funds for inappropriate and unallowable expenses 

Source: Office of the New York State Comptroller Thomas P. DiNapoli

Three private contractors hired to provide special education services for pre-K children are alleged to have used public money for inappropriate and unallowable expenses according to audits released on June 25, 2012 by New York State Comptroller Thomas P. DiNapoli.

The State Department of Education [SED], through private contractors, provides special education services to children aged three to 21. Contractors are reimbursed for expenses and fees by New York City and counties in accordance with rates set by SED, which oversees special education programs statewide. 

According to the Comptroller, the probe so far has led to felony arrests of four contractors and the restitution of $610,000.

The three audits issued on June 25, 2012 are posted on the Internet at:
http://www.osc.state.ny.us/audits/allaudits/093012/10s31.pdf
http://www.osc.state.ny.us/audits/allaudits/093012/10s32.pdf
http://www.osc.state.ny.us/audits/allaudits/093012/11s1.pdf

Placing counseling memoranda in an individual’s personnel file does not constitute a disciplinary action for the purposes of Education Law §3020-a

Placing counseling memoranda in an individual’s personnel file does not constitute a disciplinary action for the purposes of Education Law §3020-a

Board of Educ. of Dundee Cent. School Dist. (Coleman), 2012 NY Slip Op 04849, Appellate Division, Fourth Department

The Dundee Central School District filed two disciplinary charges, setting out 16 specifications against a teacher. The teacher asked the disciplinary hearing officer to dismiss six specifications on the ground that the conduct encompassed by those specifications had been the subject of counseling memoranda placed in teacher's personnel file. The memoranda had warned the teacher "of the serious consequences of any future incident[s] . . . ."

The Hearing Officer granted the teacher's motion, concluding that "it would be both improper and unfair under the just cause protocol to permit and entertain formal charges, identical in nature to those at issue in the foregoing counseling memoranda, [because], by all accounts, the matters have not repeated." Ultimately the hearing officer found the teacher guilty of certain specifications and imposed a penalty of a six-month suspension without pay "but with continued medical insurance benefits."

Dundee commenced this proceeding pursuant to Education Law § 3020-a (5) and CPLR §7511 challenging the penalty, the continuation of health benefits during the period of the teacher’s suspension without pay and the dismissal of the six specifications. The district also contended that the penalty of a six-month suspension was "excessively lenient."

Supreme Court remanded the matter to the hearing officer, concluding that” the Hearing Officer erred in dismissing the six specifications and lacked statutory authority to direct [the school district] to pay for [the teacher’s] health insurance* during the period of suspension.”

The Hearing Officer subsequently sustained, in whole or in part, three of the six specifications, but he reimposed the same penalty, finding that the teacher had previously been disciplined for the conduct at issue in those specifications through the counseling memoranda, explaining that "[i]t would be inherently unfair and totally contrary to the just cause protocol to issue further discipline to the [teacher] for actions that were never repeated."

The school district then commenced a second proceeding pursuant to Education Law §3020-a and CPLR §7511 to vacate the Hearing Officer's decision to the extent that the Hearing Officer determined that the penalty of a six-month suspension was appropriate and failed to comply with the prior judgment. Supreme Court agreed and vacated the penalty and remitted the matter to a different hearing officer regarding only the issue of the penalty.

The Appellate Division affirmed each of the Supreme Court's.prior judgments.

With respect to the issue of the dismissal of certain of the specifications by the hearing officer, the Appellate Division said that “we conclude that the Hearing Officer's decision to grant the motion of [the teacher’s] to dismiss six of the specifications was arbitrary and capricious. The court pointed out that “It is well settled that counseling memoranda such as those placed in [the teacher’s] personnel file are not considered disciplinary actions, citing Holt v Board of Educ. of Webutuck Cent. School Dist., 52 NY2d 625. In Holt, said the Appellate Division, the Court of Appeals specifically stated that such memoranda may "be used to support a formal charge of misconduct within three years of the occurrence which the evaluation addresses."

As to the issue of the hearing officer exceeding his authority, the Appellate Division ruled that Supreme Court “properly determined that the Hearing Officer exceeded his statutory authority in directing [the school district] to pay for [the teacher’s] health insurance benefits during the period of suspension. The court explained that "In recommending a penalty under [section] 3020-a of the Education Law, a hearing [officer] is limited to one of the penalties set forth in that section, i.e., a reprimand, a fine, suspension for a fixed time without pay or dismissal'" [emphasis in the decision].

As, said the court, “[an employer’s] contribution toward an employee's health insurance is a form of compensation … the Hearing Officer improperly imposed what amounted to ‘a penalty of suspension at reduced pay’” [emphasis supplied].

Addressing Supreme Court’s remanding the matter to a different hearing officer with respect to the issue of the penalty to be imposed, the Appellate Division held that Supreme Court “properly determined that the Hearing Officer's decision on remittal to impose the same penalty was arbitrary and capricious inasmuch the Hearing Officer based his decision on an erroneous interpretation of the law”

Noting that the hearing officer refused to impose any additional penalty after sustaining some of the remitted six specifications based on his continuing belief that the counseling memoranda constituted a form of discipline, the Appellate Division again pointed out that “it is well established that counseling memoranda are not disciplinary measures under Education Law §3020-a” and that the hearing officer's conclusion that the teacher had previously been disciplined for the conduct encompassed by those specifications is arbitrary and capricious. Accordingly, the court concluded that Supreme Court had properly vacated the penalty imposed by the hearing officer and remitted the matter to a different hearing officer for imposition of a penalty.

* The court ordered the teacher to reimburse the Dundee Central School District for any such costs that had been previously paid by it of behalf of the teacher.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04849.htm

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New York City Transit Authority subject to local laws that do not interfere with its providing transportation

New York City Transit Authority subject to local laws that do not interfere with its providing transportation
Tang v New York City Tr. Auth., 55 AD3d 720

Kim Tang sued the NYC Transit Authority to recover damages for alleged retaliation by the Transit Authority in violation of the New York City Administrative Code barring unlawful discrimination.

Supreme Court dismissed Tang’s complaint based on the Authority’s claim that Public Authorities Law §1266(8) exempted it from all local laws affecting its activities and operations.

Tang appealed and the Appellate Division overturned the lower court’s ruling, holding that Section 1266(8) did not exempt the Authority from all local laws but only those laws "conflicting with [Title 11 of the Public Authorities Law] or any rule or regulation" of the Transit Authority.

Section 1266(8) authorizes the Authority to “do all things it deems necessary, convenient or desirable to manage, control and direct the maintenance and operation of transportation facilities, equipment or real property operated by or under contract, lease or other arrangement with the authority and its subsidiaries, and New York city transit authority and its subsidiaries.”

Citing Bogdan v New York City Tr. Auth., 2005 US Dist LEXIS 9317, the Appellate Division concluded that language of Section 1266(8) indicates the Legislature “did not intend to prohibit the application of all Local Laws to the [Transit Authority], but only such laws that interfered with the accomplishment of its transportation purposes."

As compliance with the provisions in the New York City Administrative Code against unlawful discrimination in employment would not interfere with the function and purpose of the Transit Authority, the court vacated the Supreme Court’s dismissal of Tang’s petition.

The full text of the decisions is set out on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07903.htm

 

Employee charged with being disrespectful to another

Employee charged with being disrespectful to another
Health & Hospitals Corp. (Metropolitan Hospital Center) v. McCaskey, OATH Index No. 2195/08

ALJ Faye Lewis recommended dismissal of a charge that a special officer was disrespectful to a doctor in a psychiatric emergency room when he remarked "You're trying to kill me today". The statement, made when the doctor brought three patients to the emergency room at one time, was essentially a complaint that the emergency room was overcrowded and understaffed.

Although the officer's "choice of language was not ideal," in the absence of any showing that the brief exchange disrupted hospital operations, misconduct was not established.

Questions concerning the prosecution of grievances and whether the compliant is grievable is for the arbitrator to resolve

Questions concerning the prosecution of grievances and whether the compliant is grievable is for the arbitrator to resolve
Hartsdale Fire Dist. v Greenburgh Uniform Firefighters Assn., Inc., Local 1586, IAFF, AFL-CIO, 55 AD3d 731

The collective bargaining agreement between the Hartsdale Fire District and the Greenburgh Uniform Firefighters Association contained a broad arbitration clause providing for the arbitration of disputes "concerning the meaning, application or interpretation of this Agreement, which remains unresolved after presentation to, and processing through the grievance procedure."

Hartsdale resisted the Association’s demand for arbitration, contending that (a) the underlying grievance was not subject to arbitration; that the Association had not satisfied the procedural steps with respect to the grievance procedure; and (3) that only a unit member, rather than the Association, could file a grievance and demand arbitration.

Supreme Court dismissed Hartsdale’s petition seeking a permanent stay of arbitration and the Appellate Division affirmed the lower court’s holding.

The Appellate Division said that there was “a reasonable relationship between the subject the disputes, which involves the [Association’s] grievances over the [Hartdale’s] directives that the [Association’s] union members work and train in a fire-damaged firehouse before the firehouse was fully repaired, and the general subject the collective bargaining agreement.” Further, said the court, the CBA does not specifically exclude from arbitration the subject the grievances that concern public health and the safety of public employees. Accordingly, said the court, the question of the scope of the substantive provisions of the CBA is a contract interpretation and application reserved for the arbitrator.

As to Hartsdale’s claim that the Association failed to comply with a condition precedent before demanding arbitration, the Appellate Division pointed out that, in general, “disputes over the parties' adherence to the grievance procedure set forth in the parties' CBA is for the arbitrator to determine, not for the courts.”

Finally, said the Appellate Division, Hartdale’s claim that “grievances must be pursued only by individual employees, rather than by the [Association], especially in light of the [Association’s] contention that [Hartsdale] has a past practice of hearing grievances pursued solely by the [Association], is a matter for the arbitrator to resolve.”

As to Hartsdale’s representation that only the aggrieved employee could file a grievance, in general, making a decision to file a grievance typically is viewed as vested in the employee organization and not an individual member of the negotiating unit. Further, the Association argued that it “owned the right to go to arbitration” which is the traditional view in such situations.

In Hickey v Hempstead Union Free School District, 36 A.D.3d 760, the Appellate Division said that a union member generally has no individual rights under a collective bargaining agreement that he or she can enforce against an employer. In the absence of a contract provision stating otherwise, an employee may proceed directly against the employer only when the union fails in its duty of fair representation and "In order to establish a breach of the duty of fair representation, it is necessary to show that the union's refusal to demand that the grievance go to arbitration was arbitrary, discriminatory, or in bad faith."

As to the alleged “past practice” whereby only individuals filed grievances, it is unlikely that such a practice would be viewed as a union’s abandoning or forfeiting its right to file grievances and demand arbitration with respect to alleged violations of the collective bargaining agreement.

The full text of the Hartsdale decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07903.htm

The full text of the Hickey decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2007/2007_00493.htm