Judicial deference to PERB’s expertise in providing a remedy after it sustains an improper employer practice charge is not absolute

Judicial deference to PERB’s expertise in providing a remedy after it sustains an improper employer practice charge is not absolute
Town of Islip v New York State Pub. Empl. Relations Bd., 2014 NY Slip Op 06322, Appellate Division, Second Department

The Town of Islip had discontinued assigning vehicles to certain employees for their use in commuting between home and work. The employee organization filed an improper practice charge with the Public Employment Relations Board [PERB] and PERB issued a decision requiring the Town to [1] "restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008," and [2] “make whole unit employees for the extra expense incurred as a result of the unilateral withdrawal of the vehicle assignments, if any, together with interest as the maximum legal rate.”

The Appellate Division issued a judgment dated March 13, 2013 confirming PERB’s determination.* The Town appealed and the Court of Appeals modified the Appellate Division’s decision and judgment** “with directions to remand the matter to the New York State Public Employment Relations Board for further proceedings in accordance with its opinion.

The Court of Appeals had determined that the remedial order issued by PERB in this matter was "unduly burdensome under the circumstances, and d[id] not further the goal of reaching a fair negotiated result." 

The Court of Appeals explained that courts review “the remedies imposed by PERB with deference to its expertise” and courts should sustain a remedy fashioned by PERB for an improper practice “if reasonable.” However, said the court, “[i]t is for the courts to examine the reasonable application of PERB's remedies.”

In this instance the Court of Appeals determined PERB's remedial order requires the Town to “[f]orthwith restore the vehicle assignments for commutation between home and work to those unit members who enjoyed the benefit prior to April 4, 2008.” However a PERB injunction was not sought to preserve the status quo ante, and” the Town sold some or all of the cars formerly permanently assigned to blue- and white-collar unit employees.” Accordingly, PERB order, said the court, would force the Town to invest significant taxpayer dollars to replace these vehicles, holding that this would be “unduly burdensome under the circumstances, and does not further the goal of reaching a fair negotiated result.”

The court cited Matter of Manhasset Union Free School Dist., 61 AD3d 1231, in explaining its ruling.

In Manhasset the Appellate Division held that enforcing a PERB order for the school district to restore the personnel and facilities of its former transportation department was unreasonable where the district had sold its buses and leased its garage, and compliance with the order might require taxpayer approval. The Appellate Division then remitted the matter to PERB so that it “may fashion a remedy that grants commensurate, practical relief to the employees subject to the improper practice without requiring the school district to purchase a whole new fleet of vehicles with an uncertain future."

As to the Islip appeal, the Appellate Division held that “in light of the determination of the Court of Appeals, we remit the matter to PERB for further proceedings in accordance with that determination.”

* Town of Islip v PERB, 104 AD3d 778.

** Town of Islip v PERB, 23 NY3d 482

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06322.htm
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Only an appeal filed pursuant to §310 of the Education Law by an entity having "standing" will be considered by the Commissioner of Education

Only an appeal filed pursuant to §310 of the Education Law by an entity having "standing" will be considered by the Commissioner of Education

Appeal of United Federation of Teachers, Local 2, and the New York City Department of Education, Decisions of the Commissioner of Education, Decision  No. 16,668

United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO [Local 2], the exclusive Taylor Law collective bargaining representative for library media specialists (“LMSs”) and assistant library media specialists (“ALMSs”), filed an appeal with Commissioner of Education pursuant to 310 of the Education Law in which it alleged that the New York City Department of Education (“NYCDOE”) failed to comply with the staffing requirements set forth in §91.2 of the Commissioner’s regulations, [8 NYCRR 91.2].

The Commissioner dismissed Local 2’s appeal for a number of procedural reasons, including:

1. Lack of standing to represent an individual or class of individuals: The Commissioner said that Local 2’s appeal must be dismissed to the extent Local 2 attempted to assert claims on behalf of students. The Commissioner explained that “Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310” and while Local 2 may have, under certain circumstances, standing to assert claims on behalf of its members, it lacks standing to assert the rights of others, in this instance “students” in certain schools.

2. Lack of organizational standing. Here, said the Commissioner, Local 2 failed to demonstrate that it met the first requirement of the three-part test for "organizational standing" required to assert claims on behalf of its members.  In order to establish organizational standing, Local 2 was required to demonstrate [1] that one or more of its members has standing to sue, [2] that the interests advanced in the matter “are sufficiently germane to the individual members’ purposes” such that the organization is an appropriate representative of those interests, and [3] that the participation of the individual members is not required to assert the claim.

With respect to the first test, the Commissioner found that Local 2 failed to allege that any of its individual members had, in fact, suffered harm but, rather, alleged only that such members cannot “seek placement” in certain schools.

3. Mootness. The Commissioner noted that Local 2 challenged NYCDOE’s compliance with the Commissioner’s regulation for the 2011-2012 school year. Thus, said the Commissioner, the appeal must also be dismissed as moot as that school year had since ended. In the words of the Commissioner, “[t]he Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest.”*

However, the Commissioner said that although he was “constrained to dismiss the appeal” for procedural reasons, he was troubled by the fact that NYCDOE had admitted only “substantial” compliance with the regulation and asserted that "it is in the midst of developing a waiver process” through which its schools “could request the Commissioner to approve an ‘alternate arrangement,’ pursuant to §91.2.”** Further, said the Commissioner, the record indicates that NYCDOE has failed to staff certain secondary schools with the required number of LMSs or ALMSs or to provide an alternative arrangement approved by the Commissioner. 

The Commissioner then took administrative notice*** that, subsequent to the commencement of the instant appeal, NYCDOE had submitted a request to the State Education Department for a waiver but subsequently withdrew its request with assurances that it would be submitting a comprehensive strategic plan for libraries that would address the need to properly staff schools with LMSs and ALMSs. To date, said the Commissioner, no such comprehensive plan has been submitted.  

In view of this, the Commissioner directed NYCDOE to comply with the requirements of 8 NYCRR §91.2 in the 2014-2015 school year and thereafter.

In addition, the Commissioner directed the State Department of Education’s Office of Curriculum and Instruction to provide guidance and technical assistance to NYCDOE to this end.

*The Commissioner noted that the appeal did not fall within an exception to the “mootness doctrine” as the determination of issues involving the NYCDOE’s compliance with the regulation’s staffing requirements “are necessarily fact-specific and can be addressed in a subsequent appeal that presents a live controversy.”

** 8 NYCRR 91.2

*** See * NYCRR 276.6.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d16668
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Handbooks focusing on New York State and Municipal Public Personnel Law

Handbooks focusing on New York State and Municipal Public Personnel Law

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on http://booklocker.com/books/7401.html

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. For more information click on http://booklocker.com/books/5216.html

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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Probationary employee’s refusing to sign an agreement extending his or her probationary period not disqualifying misconduct for the purpose of determining eligibility for unemployment insurance benefits

Probationary employee’s refusing to sign an agreement extending his or her probationary period not disqualifying misconduct for the purpose of determining eligibility for unemployment insurance benefits

Matter of Jackson (Commissioner of Labor), 2014 NY Slip Op 06237, Appellate Division, Third Department

The employer chose not to grant a probationary teacher [Probationer] tenure but did offer to extend Probationer’s probationary term for one year if she executed an agreement requiring her to "waive any rights, claims or causes of action" related to tenure or the extension of her probationary period.*  Despite being aware that she could lose her job if she did not sign the agreement, Probationer refused to do so. The employer then told her that it was not “certifying completion” of her probationary period so her employment was terminated.**

In response to Probationer’s applying for unemployment insurance benefits following her termination, the Unemployment Insurance Appeal Board ruled that Probationer's refusal to sign the agreement constituted “insubordination that rose to the level of misconduct" so as to disqualify her from receiving benefits.

The Appellate Division disagreed, holding that although “[r]efusing to comply with an employer's reasonable directive to sign a document can constitute insubordination” and thus support a finding of “disqualifying misconduct” for the purposes of eligibility for unemployment insurance benefit, Probationer’s situation did not constitute such misconduct under the circumstances.

The court explained that unlike situations in which an employee is asked, and refuses, to sign a document that was necessary to the operation of the employer's business, in this instance the employer chose not to grant Probationer tenure and, instead, offered her an extension of probation. In contrast to refusing to perform a job duty, here Probationer merely declined to enter into a new contract with the employer under the terms it offered.

The court pointed out that Probationer’s refusal to sign the extension agreement could possibly be classified as her voluntarily leaving employment without good cause while the employer was offering continuing work, which would be a basis for the Board's denying her application for unemployment insurance benefits. However the employer did not contend that Probationer had quit her job but testified that Probationer had been terminated by the employer.

In any event, the Unemployment Insurance Appeals Board did not rely on the ground of “voluntarily leaving employment” in denying Probationer’s claim for benefits but rather based its denial on “misconduct” for alleged insubordination in refusing to agree to an extension of her probationary period as offered by the employer. This, said the Appellate Division was “factually incorrect” under the circumstances as the employer's termination letter indicated that Probationer was “based on the operation of law … not based on insubordination.”

Observing that “[r]efusing to renew a contract does not constitute employee insubordination or misconduct, the court explained that even if the employer would have been warranted in firing Probationer for not signing the extension agreement, her refusal to sign would not constitute disqualifying misconduct if she had a legitimate reason to refuse to do so. Finding that Probationer had not engage in any act of insubordination and, therefore, did not commit disqualifying misconduct, the Appellate Division ruled that “the Board's decision cannot stand.”

* The decision stated that Probationer “was concerned that those provisions would cause her to waive her rights to argue that the denial of tenure and proffered extension were retaliation for her pursuing a sexual harassment claim.”

** Education Law §2573 (1) provides that the employer must either [1] grant the teacher tenure, [2] terminate the teacher’s employment or [3] agree to an extension of the teacher’s probationary term once he or she has completed the three year probationary period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_06237.htm

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Providing confidential information to a drug dealer

Providing confidential information to a drug dealer

OATH Index No. 556/14; adopted, Bd. Dec. COIB Case No. 2013-258

The New York City Conflicts of Interest Board (COIB) adopted in full OATH Administrative Law Judge Kara J. Miller’s finding that a former clerical associate [Accused] employed by the Staten Island District Attorney's Office violated the Conflicts of Interest Law by offering confidential information to a drug dealer.

The drug dealer asked Accused if he was under investigation in exchange for providing cocaine to Accused's husband. On another occasion Accused  displayed her District Attorney’s Office identification to detectives in an attempt to prevent her husband's arrest.

The ALJ found that although Accused submitted an answer denying the charges, the record established that Accused was properly served with the notice of hearing and advised of the consequences of a failure to appear at the hearing. Notwithstanding being so advised, Accused failed to appear at a settlement conference and her attorney filed a motion to withdraw as counsel, stating that Accused was not responding to her telephone calls or letters.

After further conversations with Accused, Judge Miller ultimately proceeded to hold the hearing in absentia*when Accused failed to appear for a scheduled hearing. The ALJ found Accused was in default based upon her written and actual notice of the hearing, her demonstrated reluctance to participate, and her failure to appear. The Administrative Law Judge also granted Accused’s attorney’s motion to be relieved as counsel.

The ALJ sustained the charges, setting out the following findings and conclusions:

1. Accused was properly served with charges and notice of the hearing.

2. COIB proved that Accused attempted to use her position for personal advantage by offering to provide confidential information to a drug dealer in exchange for narcotics, in violation of §2604(b)(3) of the City Charter.

3. COIB proved that Accused displayed her employee identification for a non-City purpose in violation of §2604(b)(2) of the City Charter.

4. COIB proved that Accused attempted to use her position for personal advantage in violation of §2604(b)(3) of the City Charter when she identified herself to the police as an employee of the District Attorney’s office in the course of their investigation of her husband for his allegedly participating in a drug transaction.

COIB adopts Judge Miller's recommended penalty of imposing a $10,000 fine on the former associate clerk.

By law, an OATH report and recommendation in an enforcement action brought by the Conflicts of Interest Board is confidential until the Conflict of Interest Board determines that a violation has occurred.

* Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia. The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held “in absentia.” [Source: The Discipline Book, http://booklocker.com/books/5215.html ]

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-556.pdf
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