Advisory arbitration

Advisory arbitration

Hannon v Westbury Union Free Sch. Dist. Bd. of Educ., 2015 NY Slip Op 06668, Appellate Division, Second Department

“Advisory Arbitration”is typically viewed as a form of arbitration in which the decision of the arbitrator is in the nature of recommendations or advice and not binding on the parties.

As the Hannon decision demonstrates, although the opinion of the arbitrator in advisory arbitration is not binding on the parties, the parties may have obligated themselves “to consider the arbitrator’s opinion” in the course of the “decision making process” where the collective bargaining agreement [CBO] so requires and the failure to do so would constitute a “contract violation” of the CBO.

The Westbury Union Free School District Board of Education [Westbury] terminated Kevin Hannon from his position following an advisory arbitration proceeding in which the arbitrator considered Hannon's grievance. Hannon sued, contending Westbury violated the CBO in determining the disposition of his grievance. Supreme Court, Nassau County, agreed and granted Hannon’s Article 78 petition. The court directed Westbury to reinstate Hannon to his former position with back pay.  Westbury appealed the Supreme Court’s ruling.*

The Appellate Division sustained the lower court’s decision, explaining that Westbury’s determination to reject the advisory arbitration award was arbitrary and capricious as the relevant CBO between Westbury and the United Public Service Employees Union required the parties "to consider the opinion" of the arbitrator "in determining the final disposition of the grievance under review."

Citing Plainedge Federation. of Teachers v Plainedge Union Free School District, 58 NY2d 902,  the Appellate Division said that as there was no evidence in the record demonstrating that Westbury had, in fact, consider the opinion of the arbitrator when it made its decision to terminate Hannon’s employment, it was “in violation of the plain terms of the collective bargaining agreement.”

* Supreme Court had also awarded a second petitioner, Carlos Brugueras, back pay from the date that he was laid off from his position until his discharge from employment by Westbury.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06668.htm

Governor Andrew Cuomo amends Executive Order No. 8-147 relating to the deaths of civilians caused by law enforcement officers

Governor Andrew Cuomo amends Executive Order No. 8-147 relating to the deaths of civilians caused by law enforcement officers

On July 8, 2015 Governor Cuomo issued Executive Order No. 8-147 appointing the New York State Attorney General as a Special Prosecutor in matters relating to the deaths of unarmed civilians caused by law enforcement officers. The order also allows the Special Prosecutor to review cases where there is a question whether the civilian was armed and dangerous at the time of his or her death.

At the request of Attorney General Eric T. Schneiderman, Governor Andrew Cuomo has amended his Executive Order #8-147, dated July 8, 2015, to include an additional paragraph as the EO 8-147’s penultimate paragraph, to read as follows:

“FURTHER, the requirement imposed on the Special Prosecutor by this Executive Order shall include the investigation, and if warranted, prosecution:

“(a) of any and all unlawful acts or omissions or alleged unlawful acts or omissions by any law enforcement officer, as listed in subdivision 34 of §1.20 of the Criminal Procedure Law, arising out of, relating to or in any way connected with the death of Raynette Turner on July 27, 2015 while in the custody of the Mount Vernon Police Department.”

The text of the July 8, 2015 order is posted on the Internet at:
https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO147.pdf 

Free Speech Consequentialism – regulating harmful kinds of speech

Free Speech Consequentialism – regulating harmful kinds of speech

Source: the Adjunct LawProfs Law Blog [Posted by Judge Craig Estlinbaum, 130th Dist. Ct., Texas]

Erica Goldberg, Esq. (Harvard: Climenko Fellow) has posted "Free Speech Consequentialism” on Social Science Research Network.  The abstract reads:

Balancing the harms and benefits of speech — what I call “free speech consequentialism” — is pervasive and seemingly unavoidable. Under current doctrine, courts determine if speech can be regulated using various forms of free speech consequentialism, such as weighing whether a particular kind of speech causes harms that outweigh its benefits, or asking whether the government has especially strong reasons for regulating particular kinds of speech. Recent scholarship has increasingly argued for more free speech consequentialism. Scholars maintain that free speech jurisprudence does not properly account for the harms caused by speech, and that it should allow for more regulation of harmful kinds of speech. This article evaluates the various ways courts already employ free speech consequentialism. It then establishes and defends a principled basis for determining when speech’s harms greatly outweigh its virtues. I argue that courts should engage in free speech consequentialism sparingly, and should constrain themselves to considering only the harms caused by speech that can be analogized to harms caused by conduct. In this article, I develop a framework that recognizes the need to incorporate free speech consequentialism, and to constrain it, at various stages of First Amendment analysis, in connection with both tort and criminal law. I then apply this framework to timely and difficult speech issues, including campus hate speech, revenge porn, trigger warnings, and government speech — with the aim of rehabilitating core values of our First Amendment doctrine and practice.

Ms. Goldberg's article is forthcoming in Volume 116, Columbia Law Review and is currently posted on the internet at:

http://poseidon01.ssrn.com/delivery.php?ID=4880070670050801260940970910690921100580220490540580851080210880271040150