Recent determinations by New York City’s Office of Administrative Trials and Hearing Administrative Law Judges

Recent determinations by New York City’s Office of Administrative Trials and Hearing Administrative Law Judges

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Off-duty misconduct

A correction officer committed misconduct when she got into an off-duty fight in an optical store;  pulled down a display case, broke mirrors, threw a chair at the optician, advanced toward him while brandishing a piece of broken glass and grabbed the optician in a bear hug. ALJ John B. Spooner recommended that the officer be suspended for 60 days.  Dep't of Correction v. Chapple, OATH Index No. 325/15

Lack of documentation for Emergency Leave

ALJ Kevin F. Casey found that a sanitation supervisor failed to provide proper documentation for emergency leave, was absent without leave, failed to remain accessible for a home visit, and wore unauthorized sneakers on duty. ALJ Casey recommended dismissal of a charge that supervisor was out of residence without authorization while on sick leave. Penalty recommended was 52 days' suspension.  Dep't of Sanitation v. James, OATH Index No. 1789/14 (Oct. 24, 2014), adopted, Comm'r Dec

Insubordination

A supervisor in the Adult Protective Services Unit was charged with insubordination when she failed to conduct six home visits and refused to attend a mandatory forum. ALJ Kara J. Miller found that the charges were proven. Taking into consideration the supervisor’s long tenure and minimal disciplinary history, Judge Miller recommended a penalty of ten days suspension without pay.  Human Resources Admin. v. Brown, OATH Index No. 38/15 (Oct. 3, 2014).

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Status of a public officer upon the expiration of his or her term of office

Status of a public officer upon the expiration of his or her term of office

Auffredou v Board of Trustees of Vil. of Cornwall-on-Hudson, 2014 NY Slip Op 08835, Appellate Division, Second Department

Alleged that improperly removed him from the office of Village Treasurer of the Village of Cornwall-On-Hudson prior to the expiration of his statutory two-year term in violation of Public Officers Law §36, Stephen Auffredou filed a petition pursuant to Article 78 of the CPLR challenging the determination of Village of Cornwall-on-Hudson Mayor Brendan Coyne’s approving the appointment of Jeanne Mahoney to the office of Village Treasurer.

The Appellate Division held that Auffredou had not been removed from office prior to the expiration of his term but rather Mayor Coyne decided not to reappoint him after his term of office had expired and appointed Jeanne Mahoney to the position instead.

This action was consistent with §5 of the Public Officers Law which addresses holding over after expiration of term. §5, in pertinent part, provides that “Every officer except a  judicial officer, a notary public, a commissioner of deeds and an  officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be  abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor.”

The court noted that Jennifer Brow had been appointed to the office of Village Treasurer in July 2009 to serve the remainder of a two-year term of office, which term had commenced on April 6, 2009. Brown, however, resigned from her position prior to the expiration of her two-year term of office and on April 5, 2010, Auffredou was appointed to the vacancy. 

As Brown's term had not expired, Auffredou’s appointment was limited to the balance of Brown's unexpired term pursuant to Public Officers Law §38. Auffredou's term of appointment had expired prior to the challenged administrative determination made on April 18, 2011.

Accordingly, the Appellate Division affirmed the Supreme Court’s dismissal of Auffredou’s petition, ruling that the challenged determination had a rational basis, and was not arbitrary, capricious, or contrary to law. The court explained that the Mayor’s administrative determination was not made after a quasi-judicial evidentiary hearing and thus the standard to be applied was whether the determination was made in violation of lawful procedure, affected by an error of law, arbitrary and capricious, or an abuse of discretion.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2014/2014_08835.htm

Although the “management rights” clause in the collective bargaining agreement permitted the employer to restructure its workforce, the union retained the right to bargain over the practical impact of such action on the remaining employees

Although the “management rights” clause in the collective bargaining agreement permitted the employer to restructure its workforce, the union retained the right to bargain over the practical impact of such action on the remaining employees

Sanitation Officers Assn. v City of New York, , 2014 NY Slip Op 08769, Appellate Division, First Department

Sanitation Officers Association, Local 444, SEIU, AFL-CIO (the Union), the exclusive bargaining representative of all supervisors and level-I superintendents employed by Department of Sanitation of the City of New York (DOS), filed a grievance under the parties' collective bargaining agreement (CBA) alleging that DOS improperly reassigned supervisors in violation of the CBA.

DOS, on the other hand, asserted as an affirmative defense that, for economic reasons, they exercised management rights reserved under the CBA by laying off 200 out of 330 supervisors, and reassigning the remaining supervisors to additional district sections. DOS contended that it had retained its management prerogative to restructure the workforce and the CBA expressly reserved its right to alter the ratio of supervisors to collection equipment.

The arbitrator found that although the union had established a prima facie violation of the CBA. The grievance, however, was denied as the arbitrator found that DOS had retained its management prerogative to restructure the workforce and the CBA expressly reserved its right to alter the ratio of supervisors to collection equipment.

The Union filed a petition pursuant to CPLR Article 75 seeking to vacate the arbitrator’s award.

Although Supreme Court had granted the Union’s petition and remanded the matter for consideration of an appropriate remedy, the Appellate Division unanimously reversed the Supreme Court’s ruling, on the law, and confirmed the award.

The Appellate Division explained that contrary the Union’s argument, arbitrator did not exceed his power in considering and crediting DOS's defense. The court said that the arbitrator's consideration of DOS’s defense was necessary to resolve the dispute submitted to him and his decision was not irrational nor did it exceed a specifically enumerated limitation on his power.

The court than noted that the arbitrator’s denial of the grievance did not impair the Union's right to bargain over the practical impact that the workforce reduction and reassignments have placed on the remaining employees.

Finding that the arbitrator’s decision did not violate the strong public policy favoring collective bargaining, the Appellate Division said that there no basis to overturn the arbitrator's interpretation of the issues and the scope of his authority, “which must be accorded substantial deference.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08769.htm

A momentary lapse in judgment resulting in the employee’s termination may not constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law

A momentary lapse in judgment resulting in the employee’s termination may not constitute disqualifying misconduct within the meaning of the Unemployment Insurance Law

Sullivan (Brookville Ctr. for Children's Servs., Inc.-- Commissioner of Labor), 2014 NY Slip Op 08703, Appellate Division, Third Department

A claimant for unemployment insurance benefits [Claimant] had been employed for almost seven years. She was terminated from her position as the result of her violating the employer's written policy prohibiting employees from posting on social media "during work hours, unless for specific and approved business purposes." 

The Unemployment Insurance Appeal Board determined that Claimant was entitled to receive unemployment insurance benefits because, in its view, she had not lost her job due to disqualifying misconduct. The employer appealed.

The Appellate Division commenced its discussion by noting that “The question of whether a claimant engaged in actions sufficient to disqualify him or her from receiving unemployment insurance benefits is a factual one for the Board to resolve.” Further, court said that the Boar’s “determination will not be disturbed if supported by substantial evidence." 

The court explained that not every discharge for cause rises to the level of misconduct, which is defined as "a willful and wanton disregard of the employer's interest." 

Noting that Claimant did not dispute that she was aware of the employer's policy on social media usage and that she nevertheless posted an item during work hours, the Appellate Division commented that the record indicated that it was “an isolated incident” and that Claimant had a clean disciplinary record prior to her termination. 

Citing Matter of Nangreave, 107 AD3d 1211, the court sustained the Board’s determination as “Substantial evidence thus supports the determination of the Board that ‘Claimant's’ behavior, while reflective of a momentary lapse in judgment, did not rise to the level of disqualifying misconduct”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08703.htm

An employer’s unilaterally adopted policy providing health insurance benefits to employees upon retirement may be rescinded with respect to employees retiring after the effective of the rescission

An employer’s unilaterally adopted policy providing health insurance benefits to employees upon retirement may be rescinded with respect to employees retiring after the effective of the rescission  

Covel v Town of Peru,2014 NY Slip Op 08686, Appellate Division, Third Department 

Donald E. Covel Jr., a former elected official and employee of the Town of Peru, commenced a CPLR Article 78 proceeding contending that the employee benefit policy unilaterally enacted by the Town in 1991-1992 served as an implied promise requiring the Town to pay his health insurance benefits after he retired in 2009 with 33 years of service as a part-time employee. 

The 1991-1992 policy provided, as relevant in this action, that a part-time employee eligible for the Town's health insurance plan "who subsequently retires with 20 years' continuous service will be allowed to carry health insurance into retirement for both the employee and the spouse with the premium being paid by the Town."

Supreme Court granted Peru’s motion to dismiss Covel’s petition, concluding, among other things, that the Town’s 1991-1992 policy did not constitute a contract and the Town's 2009 policy, which rescinded all prior policies and did not provide for payment of part-time employee's health insurance premiums upon retirement, was applicable. The Supreme Court noted that the 1991-1992 policy relied on by Covel was a unilateral offer from the Town that had been revoked prior to Covel's performance of the acts required for acceptance – retirement from service with the Town.

The Appellate Division affirmed the Supreme Court’s ruling, rejecting Covel argument that once he achieved 20 years of service his right to this retirement benefit vested no matter when he retired.

The Appellate Division disagreed and said that, in its view, the language of the 1991-1992 policy is susceptible to only one reasonable interpretation and should be enforced according to its plain terms. 

The court then said that the plain terms of the policy “require 20 years of continuous service and retirement in order for part-time employees to be entitled to have the Town pay insurance premiums.”

Concluding that Supreme Court's interpretation reflects "a practical construction of the language used so that the reasonable expectations of the parties are realized” the Appellate Divsion dismissed Covel’s appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08686.htm

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