In order to be considered by an administrative tribunal, the evidence must be made available to the tribunal prior to its making a final determination

In order to be considered by an administrative tribunal, the evidence must be made available to the tribunal prior to its making a final determination
Cabonargi v City Univ. of N.Y., 2013 NY Slip Op 00129, Appellate Division, First Department

A doctoral program student dismissed from the City University of New York challenged the University’s decision. After considering “an email from student's academic advisor," Supreme Court granted the student’s petition and directed the University “to reconsider” its decision.

The Appellate Division unanimously reversed, on the law, explaining that Supreme Court improperly considered an email from the student's academic advisor as it was never presented at the administrative level.

Indeed, said the court, the e-mail considered by Supreme Court was issued after the University's “final determination.”

The Appellate Division noted that with respect to the evidence considered at the administrative level, the University's determination concerning the graduate student’s academic qualifications was rational, and was made in good faith and in accordance with its own rules.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00129.htm

A Reasonable Disciplinary Penalty Under the Circumstances

A Reasonable Disciplinary Penalty Under the Circumstances 

A Reasonable Disciplinary Penalty Under the Circumstances by Harvey Randall, Esq., is a 600+ page electronic handbook [e-book] for administrators, union officials, attorneys and others involved in disciplinary actions involving public officers and employees employed by New York State as the employer and its political subdivisions pursuant to the State's Civil Service Law, the Education Law, contract disciplinary grievance procedures negotiated pursuant to Article 14 of the Civil Service Law [the Taylor Law] and other statutes, rules or regulations.

In his review of this e-book, St. John's Law School Adjunct Professor Mitchell H. Rubinstein states:

 ... another excellent book that all, and I mean all, lawyers, management representatives and union advocates who practice New York public sector labor and employment law will want to purchase ... Because the book is an e-book, like Mr. Randall's previous books, it can be be downloaded to your computer and then searched as a MS Word document. Labor management officials and attorneys will want this book because it is well researched and organized and simply a time saver. Quite frankly, there is no other book like this which discussed New York law in a complete and comprehensive fashion.

For additional information about this e-book, click on http://nypplarchives.blogspot.com

NYS Department of Civil Service has issued a revised “Agency Reduction Transfer Lists” procedure applicable to officers and employees of the State as the employer

NYS Department of Civil Service has issued a revised “Agency Reduction Transfer Lists” procedure applicable to officers and employees of the State as the employer

Source: New York State Department of Civil Service Policy Bulletin #13-01

N.B. Policy Bulletin #13-01 supersedes Policy Bulletin #04-01

The Department of Civil Service’s Policy Bulletin #13-01 states that §78 of the Civil Service Law permits the transfer of employees, without examination, "from one department or agency to another department or agency of the State where necessitated by reasons of economy, efficiency, consolidation or abolition of functions, curtailment of activities or otherwise." The Policy Bulletin also notes that the Agency Reduction Transfer Program is a “discretionary tool” to be used to realign the workforce to meet programmatic and/or fiscal needs. Participation is voluntary on the part of eligible employees.

Those eligible for the ARTL program include:

1. Permanent and contingent permanent competitive class employees and eligible permanent non-competitive class and labor class employees whose positions may be impacted as a result of an action taken by reason of economy, efficiency, consolidation, or abolition of functions, curtailment of activities or otherwise.

2. Permanent and contingent permanent competitive class employees and eligible permanent non-competitive and labor class employees whose positions are relocated to a different county, and decline reassignment.

Policy Bulletin #13-01 notes that an agency may, at its discretion, extend ARTL eligibility to other employees in the titles. However, whatever method an agency chooses to determine eligibility must be objective and consistent across titles, and based upon operational needs. The Civil Service Department may extend eligibility to permanent, non-tenured, non-competitive and labor class employees.

Among those ineligible for the ARTL Program are:

1. Exempt class employees

2. Non-competitive class employees serving in policy-influencing or confidential positions

3. Provisional employees

4. Temporary employees

5. Employees who decline reassignment within the same county

6. Employees impacted by the return of incumbent in accordance with §§4.11 and 4.12 of the Classified Service. (4 NYCRR section 4.11 and 4.12)

The Civil Service Department has posted the text of Policy Bulletin #13-01 on the Internet at:

http://www.cs.ny.gov/ssd/pdf/pb13-01.pdf

Failing to comply with the notice requirements for filing a demand for arbitration set out in the collective bargaining agreement is a fatal procedural defect

Failing to comply with the notice requirements for filing a demand for arbitration set out in the collective bargaining agreement is a fatal procedural defect
In the Matter of the Arbitration between Livingston County and the Livingston County Civil Serv. Employees Assn., Inc., Local 1000, 2012 NY Slip Op 08985, Appellate Division, Fourth Department

The County and Local 1000 of the Civil Service Employees Association, Inc. were involved in a grievance that was at the various steps set out in the CBA’s contract grievance procedure article. Ultimately the County denied the grievance by a written decision dated October 4, 2011. CSEA then advised the County by a letter dated October 27, 2011 that it intended to submit the grievance to arbitration. The County received CSEA’s letter on October 28, 2011.

The critical provision in the CBA central to this litigation required "[c]ompliance with the time limits for submitting a notice of intent to arbitrate [and such compliance] shall be a condition precedent to arbitration". The CBA also included a provision stating that "Failure to submit a notice of intent to submit a grievance to arbitration . . . shall thus bar the grievance from proceeding to arbitration."

The time limits set out in the CBA required that the party demanding arbitration must notify the other party of its intention to submit the matter to arbitration “no later than 15 working days after a written decision was issued at the second step of the grievance process.”

Livingston County asked Supreme Court to stay arbitration, contending that CSEA’s demand to submit the grievance to arbitration was untimely as it had not been notified of CSEA’s intent to do so within 15 working days of date of its denial of the grievance.

Supreme Court denied the County’s petition; the Appellate Division unanimously reversed the lower court ruling “on the law.”

The Appellate Division explained that although the CBA between the parties sets out a “broad arbitration agreement,” it also contains an express provision establishing a condition precedent to submitting the matter to arbitration and CSEA had not complied with this condition precedent..

The court also noted that where such a condition precedent is expressly made part of the CBA, the issue of compliance with the condition is for the court to decide in the first instance.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08985.htm

A pattern of harassing, demeaning, and continuous bullying of less senior colleagues warrants employee’s termination

A pattern of harassing, demeaning, and continuous bullying of less senior colleagues warrants employee’s termination

Denhoff v Mamaroneck Union Free Sch. Dist., 2012 NY Slip Op 08729, Appellate Division, Second Department

A §3020-a arbitrator sustained disciplinary charges filed against a guidance counselor and held that the school district had just cause to terminate her from her position. Supreme Court dismissed the guidance counselor’s petition and the Appellate Division affirmed the lower court’s ruling.

The arbitrator had found the guidance counselor guilty of 27 specifications of misconduct set out in 14 charges related to the guidance counselor’s conduct over the course of three years that involved a pattern of "harassing, demeaning, and continuous bullying of her less senior colleagues, as well as efforts to sabotage the ability of certain colleagues to gain tenure."

The Appellate Division, noting that Education Law §3020-a(5) limits judicial review of an arbitrator's determination, said that where, as here, parties are subject to compulsory arbitration, the award must not only satisfy the provisions set out CPLR §7511[b][1][i], [iii], [iv,] the award must satisfy yet an additional layer of judicial scrutiny, namely having evidentiary support and neither being arbitrary nor capricious. Further, the court said that "When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists," citing Matter of Saunders v Rockland Bd. of Coop. Educ. Servs., 62 AD3d 1012.

On appeal the guidance counselor challenged the arbitrator's finding her guilty of several of the charges sustained against her that the court said were raised for the first time on appeal. Accordingly, an appeal of those elements of the award were not properly before the court. 

As to those charges and specifications properly before the Appellate Division, the court found that the award was not arbitrary and capricious nor irrational, and that there was evidentiary support for the arbitrator's finding of guilt as to each of the charges.

In particular, the Appellate Division commented that the arbitrator “engaged in a thorough analysis of the circumstances, evaluated the witnesses' credibility, and arrived at a reasoned conclusion that termination of the [guidance counselor's] employment was an appropriate penalty.” In other words, the Appellate Division found that “[I]t was rational for the arbitrator to find that the guidance counselor’s actions warranted termination under the circumstances of this case.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08729.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - A guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. Click on http://nypplarchives.blogspot.comfor additional information about this 600+ page electronic [e-book] publication.

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Supreme Court tells the NYC Department of Education exactly was it must do to avoid being held in contempt of court

Supreme Court tells the NYC Department of Education exactly was it must do to avoid being held in contempt of court

Storman v New York City Dept. of Educ., 2013 NY Slip Op 50007(U), Supreme Court, New York County

A teacher employed by the NYC Department of Education for approximately 30 years challenged his receiving an unsatisfactory rating as a result of allegations of sexual misconduct and corporal punishment made by a student. The teacher contended that the student's allegations were made in retaliation for his "verbally reprimanding a student."

Ultimately Supreme Court granted the teacher’s petition to annul the unsatisfactory rating, explaining "it was irrational for the DOE to conclude that the alleged conduct amounted to corporal punishment" and "the penalty imposed was excessive and shocking to the conscience." This Court ordered that the unsatisfactory rating be annulled and that "this matter [be] remitted to [DOE] for further proceedings not inconsistent with the court's decision."

The purpose of remitting the case to DOE was for DOE and teacher's union, the United Federation of Teachers (UFT), to take the appropriate steps to remedy the consequences of the underlying false allegations so that teacher would be properly compensated and his employment status restored.

The unsatisfactory rating was annulled by DOE but DOE did not take any steps to compensate the teacher or to remedy his employment situation. The teacher then asked the court to hold DOE in contempt. Supreme Court did hold DOE in contempt for its “willful and contumacious failure to comply with the Judgment,” but this determination was vacated by the Appellate Division, which found that the Contempt Order was based on an earlier Judgment that did not contain a "clear and unequivocal mandate."

In response to the Appellate Division’s granting the teacher leave to have Supreme Court clarify its Judgment by issuing was it termed "a clear and unequivocal mandate" to DOE. Supreme Court said that “In order to finally put an end to this unfortunate saga,” which began in 2004, this Court will be perfectly clear and unequivocal about what DOE must do and by when it must be done. 

By April 5, 2013, said the court, DOE shall do the following:

1. remove all references to the underlying false accusations from the teacher’s personnel file; and

2. restore back pay, with interest, that the teacher did not receive on account of the underlying false accusations, including any seniority salary adjustments and lost pension benefits.

The court also directed that in the event a dispute arises between the parties before April 13, 2013, “the parties are to promptly contact the Court, and if the parties cannot agree on the proper amount of back pay owed to the teacher, the teacher is granted leave to move to have such calculation referred to a Special Referee to hear and report.”

Finally, said the court, if DOE fails to comply with this Order in good faith, which, at a minimum, shall include an in-person meet and confer with the teacher about back pay, the teacher has leave to move for contempt, as DOE “can no longer maintain that its mandate is not clear and unequivocal.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_50007.htm