Application of a former police officer removed from the position by operation of law for reinstatement to the position denied

Application for reinstatement of a former police officer removed from the position pursuant to Public Officers Law §30(1)(e) denied

Roth v Town of Newburgh, 2015 NY Slip Op 07033, Appellate Division, Second Department

Public Officers Law §30(1)(e) is a self-executing statute which provides that a public office is deemed vacant upon incumbent’s conviction of a felony, or a crime involving a violation of his or her oath of office.

However, a public officer, other than an individual elected to public office, removed from his or her public office pursuant to §30(1)(e) "may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy."

§30(1)(e) further provides that upon the receipt of an application for reinstatement from an officer who had been so removed “by operation of law,” "the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted."

Roger S. Roth submitted an application for reinstatement to his former position as a police officer following his removal from his position pursuant to §30(1)(e).

A hearing was held and the hearing officer recommended that Roth’s application for reinstatement to his former position be denied. The appointing authority adopted the findings and recommendations of a hearing officer, denying Roth’s application for reinstatement to his position as a police officer. Roth appealed the denial of his application for reinstatement.

The Appellate Division sustained the appointing authority’s determination, holding that the denial of Roth’s application for reinstatement to his position as a police officer was supported by substantial evidence in the record and dismissed Roth’s appeal “on the merits.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07033.htm

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A “memorandum of understanding” that is characterized as an “agreement to agree” is not an enforceable contract

A “memorandum of understanding” that is characterized as an “agreement to agree” is not an enforceable contract

Offit v Herman, 2015 NY Slip Op 07056, Appellate Division, First Department

Michael Offit contended that a memorandum of understanding [MOU] that the parties had signed was a "Type II" agreement under federal case law,* requiring Julian M. Herman to negotiate in good faith to finalize a settlement of various lawsuits among the parties.

Citing IDT Corp. v Tyco Group, 13 NY3d 209, the Appellate Division said the New York Court of Appeals has rejected "the rigid classification into Types'" in favor of asking "whether the agreement contemplated the negotiation of later agreements and if the consummation of those agreements was a precondition to a party's performance."

The MOU at issue stated that the parties had reached an "agreement in principle, subject to documentation acceptable to the parties and court approval." However, noted the Appellate Division, in prior motion practice, counsel for Offit admitted that the MOU was merely "an agreement to agree."

* The differences between Type I preliminary agreements and Type II preliminary agreements as applied by the federal courts is considered at:

http://www.insidecounsel.com/2013/03/14/litigation-preliminary-agreements-may-not-be-as-pr

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07056.htm

Employer directed to reconsider the penalty imposed following the annulment of some, but not all, of the disciplinary charges and specifications filed against the employee

Employer directed to reconsider the penalty imposed following the annulment of some, but not all, of the disciplinary charges and specifications filed against the employee

Graham v New Hampton Fire Dist., 2015 NY Slip Op 06917, Appellate Division, Second Department

The New Hampton Board of Fire Commissioners adopted, in part and rejected in part the recommendation of a hearing officer, made after a disciplinary hearing and found Daniel Graham, a member of the fire department, guilty of insubordination, misconduct, incompetence, and conduct unbecoming of a member of the fire department. The Fire District imposed the penalty of termination of Graham’s employment with the district.

Graham appealed and the Appellate Division vacated the penalty imposed, termination, because it annulled some, but not all of the charges, filed against Graham. The court then confirmed the determination with respect to the remaining charges and specifications and remanded the matter the New Hampton Board of Fire Commissioners for to determine the appropriate penalty to be imposed in consideration of the charges that survived the Appellate Division’s scrutiny and to then impose that penalty.*

The court explained that judicial review of an administrative determination made after a hearing at which evidence is taken is limited to consideration of whether that determination is supported by substantial evidence. While the Board's determination as to Specification One of Charge One is supported by substantial evidence in the record, the Appellate Division said that the Board's determination that Graham was guilty of the misconduct alleged in Specification Two of Charge One must be annulled because it was “duplicative of the Board's determination in connection with Specification One of Charge One, citing Levi v Lauro, 58 AD3d 851.

The court found that with respect to Specification One of Charge Two, the Board's determination was supported by substantial evidence.** The Appellate Division noted that the Board had credited one witness's testimony that was based in part upon the statements and observations of her children. However, said the court, hearsay statements are admissible in administrative proceedings, and may form the basis for an agency's determination.

Observing that certain testimony conflicted with other testimony and that such conflicting testimony presented issues of credibility, the Appellate Division explained that, in the works of the court, “Where room for choice in administrative fact finding exists, a reviewing court may not weigh the evidence or reject a rational credibility determination made by the administrative decision maker,” citing Berenhaus v Ward, 70 NY2d 436.

* The Board had imposed a penalty of termination of Graham’s membership in the District's fire department upon a finding that he was guilty of Charges One and Two. As the court dismissed Charge One, Specification Two and Charge Two Specification Two, the penalty imposed was annulled and the matter returned to the Board to consider the appropriate penalty to be imposed upon Graham with respect to the surviving charges and specifications, Charge One, Specification One and Charge Two, Specification One.

** As to the Board's determination with respect to Specification Two of Charge Two, the Board conceded that its determination was not supported by substantial evidence and thus was annulled.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06917.htm

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A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://nypplarchives.blogspot.com/

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A two-step test is used by New York court to determine if a grievance is arbitrable

A two-step test is used by New York court to determine if a grievance is arbitrable

Incorporated Vil. of Floral Park v Floral Park Police Benevolent Assn.,2015 NY Slip Op 07026, Appellate Division, Second Department

The Floral Park Police Benevolent Association [PBA] filed a grievance alleging that its members, who worked during and in the aftermath of Superstorm Sandy, from October 29, 2012, through November 5, 2012, were entitled to additional compensation from the Incorporated Village of Floral Park pursuant to their Collective Bargaining Agreement. Unsuccessful in the three-step grievance procedure, the PBA demanded that the grievance be submitted arbitration.

The Village commenced an Article 75 action seeking a court order to stay the arbitration, whereupon the PBA filed a cross-petitioned to compel arbitration. The Supreme Court granted the Village's petition and the PBA appealed.

The Appellate Division reversed the Supreme Court action, on the law, granted the PBA’s petition to compel arbitration is granted. The court ordered the parties to proceed to arbitration noting that public policy in New York favors arbitral resolution of public sector labor disputes.

However, the Appellate Division explained, a dispute between a public sector employer and employee is only arbitrable if it satisfies a two-prong test. First the court must determine if there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance. If it passes this test, the court must then determine whether the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

The Village did not claim that arbitration of this grievance was prohibited by statute or public policy, nor did the Appellate Division find that such a prohibition, in fact, existed.

As to the second test, did the parties agreement to submit the focus of the grievance to arbitration, the court said that was only necessary to determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA. In this instance the court said that relevant provisions of the collective bargaining agreement were broad, as they provide for arbitration of any grievance, defined as "any claimed violation, misinterpretation or inequitable application of this Agreement," which remains unresolved following completion of step three of the grievance procedure. 

The Appellate Division found that there was a reasonable relationship between the subject matter of the dispute, which involves compensation over a specific time period, and the general subject matter of the CBA, and thus was arbitrable.

As to defects alleged by Village, [1] that the evidence did not support the grievance and that [2] the PBA failed to comply with the time limits for bringing the grievance, the Appellate Division said that both issues were for the arbitrator to determine.

The Appellate Division said that the "threshold determination of whether a condition precedent to arbitration exists and whether it has been complied with, is for the court to determine" In contrast, "[q]uestions concerning compliance with a contractual step-by-step grievance process have been recognized as matters of procedural arbitrability to be resolved by the arbitrators, particularly in the absence of a very narrow arbitration clause or a provision expressly making compliance with the time limitations a condition precedent to arbitration."

Here the CBA does not specify that a grievance must be personally pursued by an aggrieved member as a condition precedent to arbitration. Thus the issue as to whether the PBA complied with the grievance process is one of procedural arbitrability to be resolved by the arbitrator.

Finding that the PBA complied with the requirement that a grievance be presented to and discussed with a supervisor "within fifteen (15) days of an alleged grievance," and that the PBA president timely discussed the grievance with his supervisor after the Village first informed him that members of the Village's police department would not receive additional compensation for time worked from October 29, 2012, through November 5, 2012, the Appellate Division ruled that Supreme Court should have denied the Village's petition to stay arbitration and granted the PBA's cross petition to compel arbitration, and directed the parties to proceed to arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07026.htm