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

April 05, 2013

Arbitration award remanded “for the imposition of an appropriate lesser penalty” based on the court’s finding that employee was not guilty of one of the Specifications of the Charges filed against her


Arbitration award remanded “for the imposition of an appropriate lesser penalty” following the court’s finding that employee was not guilty of one of the Specifications of the Charges filed against her

Specification A-1 of the charges preferred against a tenured New York City school  teacher by the New York Department of Education [DOE] alleged that she had engaged in the scheme to avoid payment of non-resident tuition by enrolling her granddaughter in the school at which she taught. The arbitrator found the school teacher guilty of that Specification, among others, and imposed the penalty of dismissal.

Supreme Court confirmed the arbitration award but on appeal the Appellate Division unanimously vacated the arbitrator’s finding that the teacher was guilt of Specification 1-A-1 of the charges. Accordingly, the Court vacated the penalty of termination and remanded the matter for the imposition of an appropriate penalty.

According to the decision, DOE had conceded at the hearing that teacher's granddaughter was entitled to a tuition-free education in New York City public schools and the hearing officer made no finding that the child was not a City resident. Further, said the Appellate Division, the record did not establish that the child was not a City resident.

Thus, said the court, there was no rational basis upon which to conclude that teacher had engaged in a scheme with the purpose of defrauding DOE out of non-resident tuition.

On the other hand, the court noted that the teacher conceded, and there was substantial evidence in the record to support a finding of guilt with respect to Specification 1-B of the Charges filed against her -- that she acted in concert to file a false instrument.

Specification 1-B alleged that the teacher had engaged in a scheme to use a school aide's address to enroll her granddaughter in the school at which she taught, and that she improperly obtained the school's services (Specification 1-A-2), as the child should not have been enrolled in that school.

The Appellate Division remanded the matter “for the imposition of an appropriate lesser penalty.”

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_02333.htm

Employee’s rude conduct did not rise to the level of constituting a “physical altercation” with another employee


Employee’s rude conduct did not rise to the level of constituting a “physical altercation” with another employee
Decisions of the NYC Office of Administrative Trials and Hearings, Case 12-2095

The Department of Correction charged a correction officer with fighting with another officer, using profane language, leaving her post, and bringing an unauthorized bag near her post.

OATH Administrative Law Judge Kara J. Miller found that the Department proved all of the charges except the claim that officer engaged in a physical altercation with another officer.

The ALJ decided that the testimony at the disciplinary hearing showed that, at most, the accused officer may have pushed past the other officer rudely and brushed against her. Judge Miller did not find this sufficient to constitute misconduct.

Accordingly, she recommended a penalty of a 15-day suspension with credit for time served.   

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/12_Cases/12-2095.pdf

April 04, 2013

Government Information Networks and Technology lecture to be held on April 5, 2013


Government Information  Networks and Technology lecture to be held on April 5, 2013 

The Government Law Center and the Albany Law Journal of Science & Technology announced that a Symposium focusing on "Government/Information/Networks/Security" will be held at the Albany Law School in the DAMC Room at 1:00 p.m. on April 5, 2013.   

Experts from around the country will convene at Albany Law School to discuss issues of cybersecurity, freedom of information law, and other topics related to computer networks and information security.

The symposium is free and open to the public. Registration is encouraged

For more information, contact 518-472-5855 or mkernan@albanylaw.edu or go to http://www.albanylaw.edu/cybersecurity.   

A reception with the panelists will immediately follow the program.

The Triborough Doctrine yields to an amendment to a law applicable to a provision in an expired collective bargaining agreement if the Legislature did not specifically direct otherwise


The Triborough Doctrine yields to an amendment to a law applicable to a provision in an expired collective bargaining agreement if the Legislature did not specifically direct otherwise
City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2013 NY Slip Op 02162, Court of Appeals*

Was the phrase "in effect" as used in Article 22, §8 of the Retirement and Social Security Law sufficient to trigger the Triborough Doctrine preserve a provision set out a collective bargaining agreement [CBA] that had expired and not been replaced by a successor agreement.

The City of Yonkers and the Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, had periodically extended a CBA dated July 1, 2002 by “stipulation.”. The last such stipulation extended the agreement through June 30, 2009. The genesis of this litigation was a provision in the CBA whereby the City agreed to offer its firefighters the option of enrolling in one of two retirement plans, and agreed that it would bear "the complete cost" of contributions, "pursuant to State law."

In 2009, however, Legislature amended the Retirement and Social Security Law, effective in January 2010, requiring new members of the New York State and Local Police and Fire Retirement System to enroll in a new Retirement Tier, Tier VI. Tier VI required its members to contribute 3% of their salaries toward their retirement allowance.

The amendment set out a “narrow exception” to this 3% contribution requirement.

"Notwithstanding any provision of law to the contrary, nothing in this act shall limit the eligibility of any member of an employee organization to join a special retirement plan open to him or her pursuant to a collectively negotiated agreement with any state or local government employer, where such agreement is in effect on the effective date of this act and so long as such agreement remains in effect thereafter; provided, however, that any such eligibility shall not apply upon termination of such agreement for employees otherwise subject to the provisions of article twenty-two of the retirement and social security law" [emphasis in the opinion]..

The City, citing the June 30, 2009 termination date of the CBA, required firefighters who were hired after that date to enroll in Tier VI and to contribute 3% of their wages towards their retirement benefits. In response, the Union filed an improper practice charge with the New York State Public Employment Relations Board (PERB), alleging that the City had erred in failing to apply the CBA to firefighters hired by the City after the CBA's termination date.

The Union, relying on the exception contained in Article 22, §8 of the Retirement and Social Security Law, as well as New York Civil Service Law §209-a (1) (e), which codified the Public Employment Relations Board’s (PERB) so-called Triborough Doctrine,** filed an improper practice charge with PERB contending that the City had failed to apply the retirement provision in the now expired CAB as required by §209-a (1) (e) of the Civil Service Law.

When PERB referred the matter to arbitration, the City commenced a CPLR Article 75 proceeding seeking a permanent stay of arbitration on the ground that arbitration is barred by Civil Service Law §201(4) and Retirement and Social Security Law §470.

Although Supreme Court rejected this argument and dismissed the City’s petition, the Appellate Division reversed the lower courts ruling, holding that the statutes cited by the City “are a bar to arbitration.” The Court explained that "the CBA, which terminated by its own terms in June 2009, was no longer 'in effect' at the time of the effective date of Article 22 of the Retirement and Social Security Law," with the result that "the exception set forth in §8 of that Article is inapplicable."

The Court of Appeals affirmed the Appellate Division’s ruling.

The court said that the Triborough Doctrine, upon which the Union relies, had as its purpose "to preserve the status quo in situations where a CBA between a public employer and its employees has expired and a new one has yet to be agreed upon."

As no successor CBA was negotiated between the parties in the present case, the Triborough Law would apply and the CBA's terms would be continued, unless contradicted by statute. Significantly that part of the CBA that required non-contributory plans is rendered unlawful by Article 22 of the Retirement and Social Security Law, which prohibits such plans, unless the §8 exception is applicable in this instance.

The Court of Appeals rejected the Union’s argument that the §8 exception applies because the Triborough Law extends the terms and conditions set out in CBAs that have expired, holding that “This was not the Legislature's intent. If the Legislature had intended to invoke the Triborough doctrine, it would certainly have made that explicit.”

Rather, said the court, “the Legislature, having set forth the §8 exception for CBAs that are "in effect," expressly states that eligibility to join a CBA's retirement plan "shall not apply upon termination of such agreement." This language, the Court of Appeals concluded, “makes clear that the Legislature did not intend to apply the exception to agreements that had expired and could only be deemed to continue through the Triborough Law.”

* See, also, City of Oswego v Oswego City Firefighters Assn., Local 2707; 2013 NY Slip Op 02163; Court of Appeals, posted on the Internet at:  http://www.nycourts.gov/reporter/3dseries/2013/2013_02163.htm

** See 5 PERB 3037; 5 PERB  4505.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_02162.htm

April 03, 2013

Courts are to determine the appropriate balance between personal privacy and public interests in considering the appeal of a denial of a Freedom of Information [FOIL] request


Courts are to determine the appropriate balance between personal privacy and public interests in considering the appeal of a denial of a Freedom of Information [FOIL] request
Thomas v New York City Dept. of Educ., 2013 NY Slip Op 01026, Appellate Division, First Department

Noting that the Legislature declared in enacting Public Officers Law §84, "[t]he people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society and that access to such information 'should not be thwarted by shrouding it with the cloak of secrecy or confidentiality,'" the Appellate Division rejected the New York City Department of Education General Counsel’s denial of Michael P. Thomas’ administrative appeal challenging the refusal of the Central Record Access Officer [CRAO] to provide him with records demanded in his FOIL request.

The General Counsel had concluded that CRAO's determination denying Thomas’ request fell "well within the bounds" of the “Committee on Open Government's published advisory opinions denying FOIL requests in the context of unsubstantiated complaints, and that redaction of identifying details would not protect the personal privacy of the subject individuals” because Thomas had filed the underlying complaint and therefore knew the identity of the persons even were their names redacted.

The Appellate Division disagreed, holding that under FOIL government records are presumptively available to the public unless they are statutorily exempted by Public Officers Law §87(2) and "Those exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption" citing Hanig v State of N.Y. Dept. of Motor Vehicles. 79 NY2d 106.

Finding that Thomas’ complaint pertained to certain administrators' performance of their official duties when applying for and using federal funds, the Appellate Division remanded the matter to the lower court “for an in camera inspection of the documents to determine if redaction could strike an appropriate balance between personal privacy and public interests and which material could be properly disclosed.”

In addition, the Appellate Division directed the lower court to determine whether portions of the documents may be exempt from disclosure as intra- or inter-agency records that are not statistical or factual data under Public Officers Law §87[2][g].

The decision is posted on the Internet at:

April 02, 2013

Was the decision supported by substantial evidence is the judicial standard of review of a decision made after an administrative hearing required by law


Was the decision supported by substantial evidence is the judicial standard of review of a decision made after an administrative hearing required by law

The Westchester County Commissioner of the Department of Environmental Facilities adopted the report and recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75, finding the individual guilty of certain disciplinary charges, and terminated the individual's employment.

The Appellate Division sustained the Commissioner’s decision, explaining that “The standard of review of an administrative determination ‘made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law’ is whether the determination is supported by substantial evidence.”

Finding that substantial evidence in the record supported the determination that the individual was guilty of the disciplinary charges, the court said that in this instance the penalty imposed, termination, was not so disproportionate to the offense as to be shocking to one's sense of fairness.

In contrast, in Christopher v Phillips, 160 A.D.2d 1165, motion to appeal denied, 76 N.Y.2d 706, the Appellate Division, Third Department, decided a case in which the due process implications of a “non-mandatory” disciplinary hearing were considered.

In Christopher the court ruled that “if a hearing is not required by law, the substantial evidence standard of review does not apply....” Instead, said the Appellate Division, “the appropriate standard for the purpose of judicial review [in such a situation] is whether the determination is arbitrary or capricious.” The fact that a hearing was held even when not required by law does not alter the applicability of that standard.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_02071.htm

April 01, 2013

The appeal of a grievance challenging disciplinary action taken against an employee is controlled by the appeal procedure set out in the collective bargaining agreement


The appeal of a grievance challenging disciplinary action taken against an employee is controlled by the appeal procedure set out in the collective bargaining agreement
State of New York - Unified Ct. Sys. v Association of Surrogate's & Supreme Ct. Reporters within the City of New York, 2013 NY Slip Op 02155, Appellate Division, First Department

In Unified Court System the Appellate Division considered the viability of demanding that an appeal of a grievance challenging disciplinary action taken against an employee be submitted to arbitration. Its conclusion: the availability of arbitration to challenge an employer’s disciplinary decision is controlled by the appeal procedure set out in the collective bargaining agreement.

Although the typical collective bargaining agreement [CBA] provides that an appeal of a grievance challenging disciplinary action taken against an employee is ultimately to be submitted to arbitration, in this instance the Appellate Division unanimously reversed a Supreme Court order compelling the arbitration of a disciplinary termination of an employee in the collective bargaining unit and “permanently stayed” the arbitration.

The court explained that although it did not find any statutory, constitutional or public policy prohibition barring the arbitration of this dispute involving the termination of an employee, the relevant CBA did not provide for the arbitration of the employer's disciplinary determination.

The Appellate Division said that its review of the CBA indicated that the parties had not agreed to arbitrate such a dispute. Rather, said the court, the CBA provided that an employee aggrieved by a disciplinary penalty or punishment “may appeal from the determination by petition to the Chief Administrative Judge or by an application pursuant to CPLR Article 78.”

Accordingly, the arguments presented in support of the Association's demand for arbitration to consider the matter as a contract grievance or, in the alternative, as a non-contract grievance, were deemed irrelevant and the Article set out in the CBA that the Association contended provided for the arbitration of this dispute was held inapplicable in this instance.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2013/2013_02155.htm


CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press. Email: nyppl@nycap.rr.com.