Negotiating disciplinary procedures applicable to the police officers of a town with the town held a prohibited subject of collective bargaining

Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836), 2012 NY Slip Op 07146, Court of Appeals

Although for more than a decade collective bargaining agreements (CBA) between the Town of Wallkill (the Town) and the Town of Wallkill Police Officers' Benevolent Association, Inc. (PBA) provided that police officers subject to discipline by the Town had the right to a hearing before a neutral arbitrator, in 2007 the Town adopted Local Law No. 2, which sets forth disciplinary procedures for police officers different than those set out in the CBA.

Essentially the new disciplinary procedure did not provide for arbitration but instead provided that a disciplinary hearing would be conducted by “a Town Board member or a designee of the Town Board” rather than submitted to arbitration. The Board member or the designee was to issue a decision “with recommended findings of fact and a suggested disciplinary penalty.” The Town Board would then review the hearing officer's findings and recommendation, render a final determination of the charges and if the police officer was found guilty of one or more of the disciplinary charges and specifications, impose a penalty "consistent with the provisions of the New York State Town Law."* Any appeal from such determination was subject to review pursuant to a CPLR Article 78** proceeding in Supreme Court.

Following its enacting Local Law No. 2, the Town initiated disciplinary action against two police officers and the PBA filed demands for arbitration on behalf of the police officers. The Town’s Article 75 application for a permanent stay of arbitration was denied by Supreme Court, which granted the PBA’s cross-petition to compel arbitration.

Citing Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd. (6 NY3d 563 [2006]), the Appellate Division reversed the lower court’s ruling (see 84 AD3d 968 [2d Dept 2011]).

The Court of Appeals sustained the Appellate Division’s ruling, explaining that notwithstanding “the strong and sweeping policy of the State to support collective bargaining under the Taylor Law," police discipline may not be a subject of collective bargaining under the Taylor Law “when the Legislature has expressly committed disciplinary authority over a police department to local officials."

Although Civil Service Law §§75 and 76 generally provide for "the procedures for disciplining public employees, including police officers," and where applicable, "police discipline may be the subject of collective bargaining," the Court of Appeals noted that Civil Service Law §76(4) also states that "[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local" preexisting laws.”***

In this instance the Court of Appeals concluded that “that the Town properly exercised its authority to adopt Local Law No. 2 pursuant to Town Law §155." Accordingly, the Court held that “police discipline resides with the Town Board and is a prohibited subject of collective bargaining between the Town and the PBA.”****

* Town Law §155,. In the words of the Court of Appeals, Town Law §155 is “a general law enacted prior to Civil Service Law §§75 and 76, commits to the Town the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department."

** Town Law §155 sets out a 30-day statute of limitations for filing such a petition.

*** Civil Service Law §76(4) continues the provision set out in §22.3 of the Civil Service of 1909, as amended, to this end. 

**** Significantly, the Court ruled that negotiating such disciplinary procedures is a "prohibited subject of collective bargaining" with respect to a town and an employee organization representing the police officers of the town, rather than holding that such negotiation is a "non-mandatory" subject of collective bargaining within the meaning of the Taylor Law [Civil Service Law Article 14].

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07146.htm

Negotiating disciplinary procedures applicable to the police officers of a town with the town held a prohibited subject of collective bargaining

Negotiating disciplinary procedures applicable to the police officers of a town with the town held a prohibited subject of collective bargaining

Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill Police Dept. Unit, Orange County Local 836), 2012 NY Slip Op 07146, Court of Appeals

Although for more than a decade collective bargaining agreements (CBA) between the Town of Wallkill (the Town) and the Town of Wallkill Police Officers' Benevolent Association, Inc. (PBA) provided that police officers subject to discipline by the Town had the right to a hearing before a neutral arbitrator, in 2007 the Town adopted Local Law No. 2, which sets forth disciplinary procedures for police officers different than those set out in the CBA.

Essentially the new disciplinary procedure did not provide for arbitration but instead provided that a disciplinary hearing would be conducted by “a Town Board member or a designee of the Town Board” rather than submitted to arbitration. The Board member or the designee was to issue a decision “with recommended findings of fact and a suggested disciplinary penalty.” The Town Board would then review the hearing officer's findings and recommendation, render a final determination of the charges and if the police officer was found guilty of one or more of the disciplinary charges and specifications, impose a penalty "consistent with the provisions of the New York State Town Law."* Any appeal from such determination was subject to review pursuant to a CPLR Article 78** proceeding in Supreme Court.

Following its enacting Local Law No. 2, the Town initiated disciplinary action against two police officers and the PBA filed demands for arbitration on behalf of the police officers. The Town’s Article 75 application for a permanent stay of arbitration was denied by Supreme Court, which granted the PBA’s cross-petition to compel arbitration.

Citing Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd. (6 NY3d 563 [2006]), the Appellate Division reversed the lower court’s ruling (see 84 AD3d 968 [2d Dept 2011]).

The Court of Appeals sustained the Appellate Division’s ruling, explaining that notwithstanding “the strong and sweeping policy of the State to support collective bargaining under the Taylor Law," police discipline may not be a subject of collective bargaining under the Taylor Law “when the Legislature has expressly committed disciplinary authority over a police department to local officials."

Although Civil Service Law §§75 and 76 generally provide for "the procedures for disciplining public employees, including police officers," and where applicable, "police discipline may be the subject of collective bargaining," the Court of Appeals noted that Civil Service Law §76(4) also states that "[n]othing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local" preexisting laws.”***

In this instance the Court of Appeals concluded that “that the Town properly exercised its authority to adopt Local Law No. 2 pursuant to Town Law §155." Accordingly, the Court held that “police discipline resides with the Town Board and is a prohibited subject of collective bargaining between the Town and the PBA.”****

* Town Law §155,. In the words of the Court of Appeals, Town Law §155 is “a general law enacted prior to Civil Service Law §§75 and 76, commits to the Town the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department."

** Town Law §155 sets out a 30-day statute of limitations for filing such a petition.

*** Civil Service Law §76(4) continues the provision set out in §22.3 of the Civil Service of 1909, as amended, to this end. 

**** Significantly, the Court ruled that negotiating such disciplinary procedures is a "prohibited subject of collective bargaining" with respect to a town and an employee organization representing the police officers of the town, rather than holding that such negotiation is a "non-mandatory" subject of collective bargaining within the meaning of the Taylor Law [Civil Service Law Article 14].

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07146.htm

The retirement option of the divorced spouse should reflect the equitable distribution formula set forth in Majauskas

The retirement option of the divorced spouse should reflect the equitable distribution formula set forth in Majauskas 

McVeigh v Curry, 2012 NY Slip Op 07091, Appellate Division, Second Department

In a matrimonial action, Supreme Court directed the plaintiff to furnish her former spouse with a copy of her birth certificate essentially for the purposes of his electing the 100% joint and survivor option of his pension fund or his obtaining life insurance and directed the defendant to elect either the 100% joint and survivor option of his pension fund or obtain life insurance to cover her 50% share of the marital portion of her former spouse's pension.

The Appellate Division modified the order issued by Supreme Court, explaining the Supreme Court erred in directing the plaintiff to furnish her former spouse with a copy of her birth certificate only for the purposes of his electing the 100% joint and survivor option of his pension fund or his obtaining appropriate life insurance, as that option could potentially result in an award to the plaintiff that is more than she is entitled to under the equitable distribution formula enunciated in Majauskas v Majauskas (61 NY2d 481).

The court observed that the 100% joint and survivor option would, upon the plaintiff's former husband’s death, provide her with the full monthly retirement allowance of her former husband's pension for the rest of her life.

In contrast, Option 3 of the defendant's pension fund, the 50% joint and survivor option, would, upon the defendant's death, provide the plaintiff with 50% of the original monthly retirement allowance for the rest of her life.*

Noting that the 50% joint and survivor option is closer to the equitable distribution formula set forth in Majauskas, the Appellate Division ruled that the Supreme Court’s order must be modified as indicated.

* Not mentioned in the opinion is the difference in the amount of the monthly retirement allowance that would be paid to the plaintiff’s former husband under the 100% joint and survivor option in contrast to the amount that would be paid to him under “Option 3.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07091.htm

Resigning from a teaching position in one tenure area to accept a tenured appointment in a different tenure area could affect seniority rights for the purposes of layoff

Resigning from a teaching position in one tenure area to accept a tenured appointment in a different tenure area could affect seniority rights for the purposes of layoff

Appeal of Erika L. Kwasnik, Decisions of the Commissioner of Education, Decision #16,419

This decision by the Commissioner of Education succinctly sets out the controlling consideration in determining the rights of an educator resigning from his or her tenured position in one tenure area to accept a tenured appointment in a different tenure area in the event of the abolishment of his or her position.

Essentially there was no dispute that following her appointment to a library media specialist position, Erika L. Kwasnik submitted a letter of resignation from her English teacher position. When the library media position was abolished and Kwasnik was advises that she would be excessed and her name place on a reinstatement list, she contended that because she was continuously employed within the district, she maintained her tenure, and therefore her seniority rights, in the English teacher position.

The Commissioner indicated that in a layoff situation, the relevant rules of the Board of Regents provided as follows:

1. 8 NYCRR §30-1.10, a professional educator who acquires tenure in a new tenure area generally retains tenure in his or her original tenure area while he or she remains continuously employed as a full-time member of the professional staff of the district.

2. 8 NYCRR §30-1.13(c) provides that upon abolition of his or her position, a professional educator who has tenure status in additional tenure areas must be transferred to such other tenure area in which he or she has greatest seniority.

The Commissioner noted that both regulations apply “only to professional educators who have tenure and seniority rights in another tenure area at the time tenure was acquired in a new tenure area or the position was abolished, as applicable.”

In this instance, however, the school district claimed that Kwasnik had resigned from her tenured English teacher position and thus the issue before the Commissioner in this appeal is whether she had knowingly and freely waived her tenure and seniority rights in the English tenure area by resigning from her position as an English teacher. 

Citing Matter of Middleton (16 Ed Dept Rep 50, Decision No. 9,296, reopening denied 16 id. 366, Decision No. 9,433), the Commissioner noted that where a teacher had resigned from a full-time position but was simultaneously appointed to a non-probationary, part-time position in the district it was held that the resignation served to terminate the employment relationship and any reinstatement rights. 

Similarly, said the Commissioner, although Kwasnik continued to work in the district and her benefits accrued without interruption, “I must conclude that her resignation from her position as a tenured English teacher constituted a relinquishment of her tenure and seniority rights with respect to an English teacher position.”

The Commissioner then observed that to be enforceable, such a waiver of tenure rights must be knowingly and freely given and not the product of coercion. Further, “[a]bsent a showing of fraud, duress, coercion, or other affirmative misconduct on the part of school officials which renders a resignation involuntary, a resignation cannot be withdrawn once it has been accepted* by school authorities.”

Kwasnik asserted that that she expressed reservations to the district’s previous superintendent about resigning but was told that “it was the only way she would be able to take on the duties of a Library Media Specialist.”  She then claimed that she “reluctantly” agreed to provide a letter of resignation. 

  

The Commissioner, however, said that “The record indicates that petitioner knowingly and freely resigned from her position of English teacher once she was assured that she would be receiving the position of a library media specialist.” The Commissioner continued: “While [Kwasnik] may have expressed reservations about providing a letter of resignation, she did not seek the assistance of counsel or her union before submitting the letter, nor did she indicate in her letter that she wished to maintain her tenure and seniority rights to the English teacher position.”

Finding that Kwasnik “has not demonstrated that she was coerced into submitting a letter of resignation” or that the district engaged in any other affirmative conduct that rendered her resignation involuntary, the Commissioner ruled that the school district acted reasonably when it viewed Kwasnik’s resignation “as a voluntary end to her employment as an English teacher, thereby terminating her seniority and tenure rights to that position.”

* COMMENT: Except as otherwise provided by law, rule or regulation, or by the terms of a collective bargaining agreement, a resignation need only be received by the appointing authority, or its designee, prior to receipt of a notice that the individual has rescinded or withdrawn it to be effected – acceptance of the resignation is not required for it to be operative [Hazelton v Connelly, 25 NYS2d 74]. An example of a situation where acceptance of a resignation mandated by statute: Section 2111 of the Education Law provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16419.html

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