Arbitrators may make an award reflecting the spirit of the agreement

Arbitrators may make an award reflecting the spirit of the agreement

Matter of Arbitration Between Civ. Serv. Employees Assn. Inc. Local 1000 AFSCME AFL-CIO Niagara Falls Bridge Commn. Unit Niagara County Local 832, 32 AD3d 1186

The Appellate Division, Fourth Department ruled that a Supreme Court Justice properly granted CSEA’s petition to confirm an arbitration award and denied the Niagara Falls Bridge Commission’s cross motion to vacate the award.

The Court held that the arbitrator did not exceed the collective bargaining agreement’s [CBA] limitations on her power.

The CBA provided that the arbitrator "shall not have the power to add or subtract from or to modify in any way the terms of [the CBA]." In this instance, however, the court found that the record established that the arbitrator merely interpreted conflicting provisions of the CBA in order to effectuate the intent of the parties.

According to the decision "Parties who agree to refer contract disputes to arbitration must recognize that arbitrators may do justice and the award may well reflect the spirit rather than the letter of the agreement." The court decided that the arbitrator's interpretation of the CBA was appropriate under the circumstances and, contrary to Niagara Falls Bridge Commission’s argument, it was not "totally irrational."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_06663.htm
.

Diminution of employment benefits may constitute disciplinary action within the meaning of Civil Service Law §75

Diminution of employment benefits may constitute disciplinary action within the meaning of Civil Service Law §75 

Lynch v Board of Education of the Hewlett-Woodmere Union Free School District, 13 Misc 3d 1217(A)

The School District changed the work schedule of a school bus driver and part time security aide. The change prevented him from working as a security aide.

The employee sued, contending that he lost benefits because of the change in his work schedule. This change in his work schedule, he argued, was a "de facto termination" from his security aide position in violation of Civil Service Law Section 75.

The court agreed, holding that “A ‘diminution in benefits’ occasioned by a reassignment is sufficient to qualify as a disciplinary action so as to require compliance with CSL §75.”

The collective bargaining agreement, however, provided that complaints concerning work assignments and working hours were to be processed through the agreement’s “contract grievance procedure”.

The court said that this provision did not control as the collective bargaining agreement also provided that the term "grievance" did not include any complaint that was otherwise reviewable pursuant to law or any rule or regulation having the force or effect of law.

The court ruled that “Given the exemption from grievance procedure for those matters otherwise reviewable pursuant to law” Lynch could sue “to vindicate a statutory right under Civil Service Law §75” without first utilizing the collective bargaining agreement's contract grievance procedure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_51881.htm

N.B. An earlier decision posted on the Internet at http://www.courts.state.ny.us/reporter/3dseries/2006/2006_51734.htm

vacated by the court and republished a modified the opinion to correct a mis-stated date.

A counseling memoranda that includes more than “job related feedback” may constitute disciplinary action

12 Misc 3d 1197(A)

An employee was given a written “counseling memorandum” following an investigation of a complaint alleging sexual harassment filed against him by one of his subordinates.

The counseling memorandum, in part, issued by the appointing authority stated:

This Memorandum serves as a written counseling based on the Sexual Harassment complaint that was filed and investigated. You will be required to participate in Supervisory Training as well as Sexual Harassment Prevention Training in the near future.

A “counseling memorandum” issued to a permanent employee typically is not considered disciplinary action requiring “notice and hearing.” In this instance, however, the court ruled that the counseling memorandum given to the employee did, in fact, constitute a disciplinary action taken against him and thus was subject to the disciplinary grievance procedures set out in a collective bargaining agreement [CBA]. 

While the CBA specifically provided that “counseling is not discipline,” the court said that the counseling memorandum issued to Harper by his employer also requires that he attend Supervisory Training and Sexual Harassment Prevention Training,. This additional requirement extended beyond the mere "job-related feedback" referred to in the CBA and thus constituted disciplinary action within the meaning of the CBA.

Accordingly, the employee was entitled to administrative due process in the form of a notice of discipline and a hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_51605.htm

Contracting out the recruitment and appointment of substitute teachers

Contracting out the recruitment and appointment of substitute teachers

Appeal of Kim E. Woodarek, Comm. Of Education Decision No. 15,422

The Commissioner of Education ruled that a school district does not have the authority to enter into a contract with a private party to recruit, interview, select, hire and assign employees to render per diem substitute teaching.

The Commissioner applied the rationale set out in the Sweeney decision [(44 Ed Dept Rep 176, Decision No. 15,139)]. In Sweeney it was held that a BOCESdoes not have the authority to contract with a private party for instructional services.

Other appeals in which the Commissioner determined that a board of education lacks authority to provide instructional services through an independent contractor include Appeal of McKenna, 42 Ed Dept Rep 54, Decision No. 14,774; Matter of Friedman, 19 Ed Dept Rep 522, and Decision No. 10,236. [See, also, Education Law §1950(4)].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume46/d15422.htm

Termination and reinstatement to a lower grade position prior to completion of the required probationary period

Termination and reinstatement to a lower grade position prior to completion of the required probationary period

31 AD3d 456

The Appellate Division, Second Department affirmed the termination on an employee prior to the end of his probationary period in a higher level position and his reinstatement to his former, lower grade position.

In response to the employee’s challenging his termination during his probationary period the Appellate Division said that "A probationary employee may be discharged without a hearing and without a statement of reason in the absence of any demonstration that the dismissal was for a constitutionally-impermissible purpose or in violation of statutory or decisional law" citing such decisions as Walsh v New York State Thruway Auth., 24 AD3d 755; Matter of York v McGuire, 63 NY2d 760; and Matter of Rossetti-Boerner v Hampton Bays Union Free School Dist., 1 AD3d 367.

Accordingly, the Appellate Division rejected the employee’s contention that he was entitled to the procedural protections of Civil Service Law §75 as he was removed from his appointed position prior to his satisfactory completion of a one-year probationary period.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05375.htm

State Comptroller holds $12.5 BILLION IN UNCLAIMED FUNDS, some of which may be the property of a New York governmental entity

State Comptroller holds $12.5 BILLION IN UNCLAIMED FUNDS, some of which may be the property of a New York governmental entity

Source: Office of the New York State Comptroller

New Yorkers and others can find out if they are owed some of the state’s $12.5 billion in unclaimed funds using the Comptroller’s Unclaimed Funds database via the Internet at:

https://ouf.osc.state.ny.us/ouf/

However, these are not just unclaimed funds belonging to individuals and businesses. 

The Comptroller also has monies received pursuant to the Abandoned Property Law belonging to counties, cities, towns, villages, school districts and public employee organizations.

For example, the Comptroller currently lists funds belonging to the following entities:

COUNTY OF CATTARAUGUS

INDUSTRIAL DEVELOPMENT AGENCY CCIDA #L83 02 LITTLE VALLEY NY 14755

COLUMBIA GAS TRANSMISSION CORP

CITY OF BUFFALO

C/O CARL DOBOZIN ATTY AT LAW 68 NIAGARA STREET BUFFALO NY 14202

UTICA FIRST INSURANCE CO

TOWN OF JUNIUS

RD 2 BOX 154 3 WATERLOO NY 13165

EXCHANGE INSURANCE CO

VILLAGE OF CHERRRY CREEK

VILLAGE TREASURER CHERRY CREEK NY 14723

NEW YORK STATE ELECTRIC & GAS CORP

BOCES OF NASSAU COUNTY

207 NEWTOWN ROAD PLAINVIEW NY 11803

CITIBANK NA NATIONAL COMPLIANCE GRP

ROCHESTER CITY SCHOOL DISTRICT

C/O 131 W BROAD ST ROCHESTER NY 14614

SCHOLASTIC BOOK CLUBS INC

CSEA LOCAL 1000 AFSCM

143 WASHINGTON AVE CAPITON ST ALBANY NY 12224

STATE OF CALIFORNIA

BOCES TEACHERS ASSOC

2542 2ND AVE SCHENECTADY NY 12303

TD BANK NA

POLICE BENEVOLENT ASSOC TOWN

BOX 89 ARRONK NY 10504

BANKERS TRUST CO

However, those searching for monies that may be due a particular jurisdiction will have to be inventive. For example, monies that could be claimed by the City of Rochester have been filed as belonging to:

CITY CLERK OF ROCHES

CITY CLERKS OFFICE 30 CHURCH STREET R00M 100-A ROCHESTER NY 14614

STERLING COLLISION CENTERS

ROCHESTER CITY

CITY HALL 30 ROCHESTER NY 14614

CCO MORTGAGE CORP HOLDER 014360

ROCHESTER POLICE DEPT

JEANNE MARCIANO SIS 150 PLYMOUTH AVE S S TE 620 ROCHESTER NY 14614

VERIZON WIRELESS

Again, the Comptroller’s Unclaimed Funds database is available via the Internet at:

https://ouf.osc.state.ny.us/ouf/

Appointment of an “uncertified teacher” to fill a school district’s vacancy in an “extracurricular activity” lawful

Appointment of an “uncertified teacher” to fill a school district’s vacancy in an “extracurricular activity” lawful

Appeal of Canestraro, Decisions of the Commissioner of Education, Decision No. 16,507

Michael Canestraro challenged various actions of the Board of Education of the William Floyd Union Free School District [William Floyd] related to his position being laid off and its refusal to appoint him to another available position.

Mr. Canestraro, certified in Performing Arts and Drama, was employed by William Floyd  as a teacher of Theater and Dance. He was granted tenure in the music tenure area in 2006. Budgetary constraints resulted in William Floyd’s eliminating a position in the music tenure area and Mr. Canestraro was notified that “his position was abolished … and that he would be placed on a preferred eligibility list.”

In his appeal to the Commissioner Mr. Canestraro asserted that he was improperly terminated as he was not the least senior person in the music tenure area. He also contended that William Floyd “violated his constitutional and statutory rights in that he was deprived of his property without due process of law” and violated Education Law §3013(3)* by employing Jennifer Roller, a non-tenured teacher, uncertified in Performing Arts and Drama, instead of appointing him to the position Director of the Children’s Theatre.

William Floyd contended that [1] Mr. Canestraro’s appeal was untimely, [2] that Mr. Canestraro lacks certification for the positions to which he claimed recall rights and [3] that Mr. Canestraro’s petition failed to state a cause of action.

After addressing a number of procedural issues, the Commissioner dismissed Mr. Canestraro’s appeal as untimely** and other procedural defects set out in the Commissioner’s determination.

The Commissioner pointed out that a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief, citing 8 NYCRR §275.10.

In this instance the Commissioner found that Mr. Canestraro’s claim that Ms. Roller was not properly certified to be the Director of the Children’s Theatre was not supported by the record. The Commissioner said that an affidavit of William Floyd’s assistant superintendent for human resources and administration indicates that the district abolished its theater program and that the Children’s Theatre at the high school is an extracurricular activity, outside of the school day.

Consequently, said the Commissioner, because the Children’s Theater was not part of William Floyd’s academic curriculum, but was an extracurricular activity, Ms. Roller was not required to be certified to hold the position of Director of the Children’s Theatre. Thus Mr. Canestraro failed to demonstrate that Ms. Roller was required to hold certification in order to be lawfully employed in this extracurricular activity.

Finally, the Commissioner ruled that Mr. Canestraro’s reliance on the “continuing wrong doctrine” was misplaced as it dis not apply in this instance and this element of his claim must also be dismissed.

* §3013(3), in pertinent part, provides: “The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position.”

** Mr. Canestraro initially filed a Notice of Claim for reinstatement and damages but Supreme Court, Suffolk County, dismissed his Article 78 petition on the grounds that the Commissioner of Education had primary jurisdiction over the dispute [Canestraro v. William Floyd Union Free School District, Supreme Court, Suffolk County, Index No.0045692/2010]. The Commissioner noted that an unsuccessful attempt to litigate a dispute in court that does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner, when the appeal is commenced within 30 days of receipt of the judicial determination.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16507.pdf

=========================

The Layoff, Preferred List and Reinstatement Manual - a 645-page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

  =========================

An email message is capable of conforming to the criteria of CPLR 2104 with respect to “stipulating settlement” of the matter in dispute

An email message is capable of conforming to the criteria of CPLR 2104 with respect to “stipulating settlement” of the matter in dispute

Forcelli v Gelco Corp., 2013 NY Slip Op 05437, Appellate Division, Second Department

In this action, which involved the settlement of litigation resulting from an automobile accident, the Appellate Division concluded that an email message can satisfy the criteria of CPLR 2104 so as to constitute a binding and enforceable stipulation of settlement. The court explained that stipulations of settlement are judicially favored and will not lightly be set aside and “are to be enforced with rigor and without a searching examination into their substance' as long as they are clear, final and the product of mutual accord."

To be enforceable, stipulations of settlement must conform to the criteria set forth in CPLR 2104. Where the settlement was not made in open court, CPLR 2104 provides: "An agreement between parties or their attorneys relating to any matter in an action . . . is not binding upon a party unless it is in a writing subscribed by him or his attorney."

Here, said the court, an email message set forth the material terms of the agreement -- “the acceptance by the plaintiffs' counsel of an offer of $230,000 to settle the case in exchange for a release in favor of the defendants, and contained an expression of mutual assent.” Significantly, said the court, the settlement was not conditioned on any further occurrence, such as the outcome of the motion for summary judgment or the formal execution of the release and stipulation of dismissal by these defendants and related entities. “

Courts have long recognized that traditional correspondence can qualify as an enforceable stipulation of settlement under CPLR 2104 as a letter can be considered "subscribed," since letters are usually signed at the end by the author thereof. However, email messages cannot be signed in the traditional sense.

Nevertheless, said the court, this lack of "subscription" in the form of a handwritten signature has not prevented other courts from concluding that an email message, which is otherwise valid as a stipulation between parties, can be enforced pursuant to CPLR 2104.

In Williamson v Delsener (59 AD3d 291, 291), the Appellate Division, First Department, stated that "emails exchanged between counsel, which contained their printed names at the end, constitute signed writings (CPLR 2104) within the meaning of the statute of frauds." Similarly, in Brighton Inv., Ltd. v Har-Zvi (88 AD3d 1220, 1222), the Appellate Division, Third Department, ruled that "an exchange of emails may constitute an enforceable contract, even if a party subsequently fails to sign implementing documents, when the communications are sufficiently clear and concrete to establish such an intent."

The court’s rationale: “Given the now widespread use of email as a form of written communication in both personal and business affairs, it would be unreasonable to conclude that email messages are incapable of conforming to the criteria of CPLR 2104 simply because they cannot be physically signed in a traditional fashion.”

As the email message contained the attorney’s printed name at the end thereof, in contrast to an "electronic signature" as defined by the Electronic Signatures and Records Act, the court decided that the record supports the conclusion that the attorney, in effect, signed the email message.

Accordingly, the Appellate Division ruled that where “an email message contains all material terms of a settlement and a manifestation of mutual accord, and the party to be charged, or his or her agent, types his or her name under circumstances manifesting an intent that the name be treated as a signature, such an email message may be deemed a subscribed writing within the meaning of CPLR 2104 so as to constitute an enforceable agreement.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05437.htm

Comptroller DiNapoli releases municipal audits

Comptroller DiNapoli releases municipal audits

Click on text highlighted in bold to access the full report. 

On August 1, 2013, New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the

Town of Benson,

Town of Brasher,

Cayuga County,

Village of Delhi,

Dutchess County,

Ellenburg Center No. 15 Fire District,

Franklin Square Water District,

Town of Humphrey,

Lewis County,

Niagara County,

Oswego County,

Village of Penn Yan,

Rensselaer County,

Saratoga County,

Steuben County and

Sullivan County

Teacher Improvement Plan [TIP] permitted in the absence of an unsatisfactory performance evaluation under certain circumstances

Teacher Improvement Plan [TIP] permitted in the absence of an unsatisfactory performance evaluation under certain circumstances

Decisions of the Commissioner of Education, Decision No. 16,510

A school psychologist, [P] was given a “counseling letter” as a result of alleged professional deficiencies and provided with a draft “Teacher Improvement Plan” [TIP]. Following discussions concerning the plan, a final TIP was agreed to and signed by the high school principal, the middle school principal and P.

P then filed an appeal with the Commissioner of Education alleging that although he was not rated “unsatisfactory,” the school district implemented a TIP for him without his consent and that he was not consulted in developing the TIP. Such actions, P argued were in violation of 8 NYCRR §100.2(o) of the Commissioner’s Regulations. P asked the Commissioner to direct the district to withdraw the TIP.

The district, on the other hand, contended that although P's TIP was not implemented as a result of an unsatisfactory rating pursuant to §100.2(o),  §100.2(o) does not preclude the promulgation of a TIP in the absence of an unsatisfactory evaluation under appropriate circumstances. The district also claimed that P was consulted in developing the challenged TIP.

Addressing the merits of P’s appeal, the Commissioner said that a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief, citing 8 NYCRR §275.10.

§100.2(o) of the Commissioner’s regulations requires an annual evaluation of certain teachers, including pupil personnel service providers such as “school psychologists.” At the time P’s TIP was promulgated §100.2(o) provided as follows:

Teacher improvement. The plan shall describe how the school district or BOCES addresses the performance of teachers whose performance is evaluated as unsatisfactory, and shall require the development of a teacher improvement plan for teachers so evaluated, which shall be developed by the district ... in consultation with such teacher.

The Commissioner ruled that although §100.2(o) requires a school district to issue a TIP in the event the educator receives an unsatisfactory evaluation, nothing in §100.2(o), or any other statute or regulation, specifically bars the promulgation of a TIP where professional deficiencies are noted by means other than an evaluation. Accordingly, said the Commissioner, P failed to demonstrate that  §100.2(o)'s requirement that a TIP be developed for an educator receiving an unsatisfactory evaluation precludes the use of a TIP in other circumstances.

The Commissioner also determined that P’s claim that he was not consulted in the development of the TIP was not supported in the record.

P also contended that a decision to promulgate a TIP outside of the parameters set forth in §100.2(o) is subject to collective bargaining.

The Commissioner dismissed this aspect of the appeal explaining that Article 14 of the Civil Service Law vests exclusive jurisdiction over complaints involving collective bargaining in the Public Employment Relations Board [PERB] and, therefor, he “lack jurisdiction" to address the collective bargaining allegations raised by P in this appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16510.pdf