A court’s review of the disciplinary penalty imposed on an employee is whether the penalty imposed constitutes an abuse of discretion as a matter of law

A court’s review of the disciplinary penalty imposed on an employee is whether the penalty imposed constitutes an abuse of discretion as a matter of law

Peterson v City of Poughkeepsie, 2015 NY Slip Op 07031, Appellate Division, Second Department

Ronald J. Knapp, as Acting City Administrator of the City of Poughkeepsie, terminated Carleton Peterson, a street supervisor employed by the City of Poughkeepsie Department of Public Works, after Peterson was found guilty of three charges of misconduct, which included, falsifying his time records.

Following his termination, Peterson commenced an Article 78 proceeding to review Knapp’s determination. The Appellate Division granted Peterson’s petition to the extent of annulling the finding of guilt with respect to certain charges, dismissing those charges, and annulling the penalty imposed. The court than remitted the matter to the City for a new determination as to the penalty to be imposed in connection with the charges that were sustained.

After a new hearing Knapp again imposed the penalty of termination of Peterson's employment.

Peterson commenced this second CPLR Article 78 proceeding seeking, among other things, a review of the penalty imposed following the second disciplinary hearing. The Supreme Court annulled Knapp’s decision terminating Peterson’s employment and remitted the matter to the City for a new hearing on the issue of the imposition of a lesser penalty and a new determination thereafter.

Poughkeepsie appealed the Supreme Court’s ruling and the Appellate Division reversed the Supreme Court’s order annulling Knapp’s decision to terminate Peterson.

The Appellate Division said that “Judicial review of an administrative penalty is limited to whether the mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law” and, citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, observed that a court may only set aside an administrative agency's determination if the punishment or discipline imposed is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law.

The Appellate Division then ruled that under the circumstances of this case, where the Peterson was found guilty of having submitted a falsified time sheet, the penalty of dismissal from employment “was not so disproportionate to the offenses as to be shocking to one's sense of fairness.”

Accordingly, said the court, Supreme Court should have denied that branch of Peterson’s petition seeking to annul the Acting City Administrator's determination terminating his employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07031.htm

­____________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://booklocker.com/books/7401.html

____________

Is it a health insurance claim or a workers compensation claim?

Is it a health insurance claim or a workers compensation claim?

Source: CFO Daily Alert

The CFO Daily Alert reports that for some common ailments, like soft-tissue back, knee, or shoulder pain, it’s often not clear whether the injury was work-related or non-occupational. Physicians are given a degree of discretion under workers’ compensation law to make that determination, which creates a conflict of interest, because they usually end up benefiting financially by classifying the injury as work-related. An ongoing shift to the “capitation” model for reimbursing medical providers leads them to classify more injuries as work-related.

This is because workers’ compensation reimbursement rates are established by law, and they are almost always at higher rates than rates contracted with insurers or self-insured employers.

The article is posted on the Internet at:

http://ww2.cfo.com/workers-compensation/2015/10/trendy-health-care-payment-scheme-hikes-workers-compensation-costs/?utm_campaign=CFODailyAlert&utm_nooverride=1&utm_source=CFO-email&utm_medium=email&utm_content=CFODailyAlert_Thursday_2015-10-8&utm_term=workers-compensation&mkt_tok=3RkMMJWWfF9wsRonvarPZKXonjHpfsXw6uwoXK%2Bg38431UFwdcjKPmjr1YEJSsdlI%2BSLDwEYGJlv6SgFT7TFMaxo0bgJWRM%3D

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

_________________

The Discipline Book, - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

  _________________

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

______________

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/

______________

                                                    

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

The reasons that would support the vacating of a disciplinary penalty imposed by the arbitrator following a disciplinary hearing are limited

The reasons that would support the vacating of a disciplinary penalty imposed by the arbitrator following a disciplinary hearing are limited

Esteban v Department of Educ. of the City School Dist. of the City of N.Y., 2015 NY Slip Op 06965

The New York City Department of Education [DOE] had filed disciplinary charges against Damian Esteban, a teacher employed by DOE, which were submitted for adjudication to an arbitrator pursuant to Education Law §3020-a. The arbitrator sustained certain of the charges and specifications and determined that the appropriate penalty for Esteban's misconduct was dismissal.

Esteban filed a petition to seeking a court order vacating that portion of a disciplinary arbitrator's decision that imposed the penalty of termination of his employment as a public school teacher. Supreme Court granted Esteban’s petition and remanded the matter for the imposition of an appropriate lesser penalty.

DOE appealed and the Appellate Division unanimously reversed the Supreme Court’s ruling on the law and dismissed the proceeding.

Citing Board of Educ. of Arlington Cent. School Dist. v Arlington Teachers Assn., 78 NY2d 33, the court explained that an arbitration award determining an employment dispute in public education may not be vacated unless "it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The Appellate Division held that the penalty of dismissal was not irrational and was not against public policy. Nor, said the court, was it ultra vires* for the arbitrator to determine that Esteban's public possession of heroin warranted the penalty of dismissal.

Citing Lackow v Department of Education, 51 AD3 563, the court then held that imposing termination of employment as a penalty for such misconduct not "so disproportionate to the offense as to be shocking to the court's sense of fairness."

* An "ultra vires" act refers to an act or action that was beyond the scope of the authority of the arbitrator to perform. Here the court concluded that the penalty imposed on Esteban was not ultra vires.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06965.htm

______________

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/

______________

Selected reports issued by the State Comptroller during the week ending October 3, 2015

Selected reports issued by the State Comptroller during the week ending October 3, 2015

Source: Office of the State Comptroller

Click on the text in color to access the Comptroller’s report.

Top Retirement System staff appointed
New York State Comptroller Thomas P. DiNapoli has named Colleen Crawford Gardner as Executive Deputy Comptroller and Melanie Whinnery as Deputy Comptroller of the New York State and Local Retirement System (NYSLRS).

http://www.osc.state.ny.us/press/releases/sept15/093015.htm?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=093015release

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the municipal units of government:

Barnard Fire Department

http://www.osc.state.ny.us/localgov/audits/firedists/2015/barnard_dept.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

Barnard Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/barnard_dist.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

Orange Lake Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/orangelake.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

Village of Silver Springs

http://www.osc.state.ny.us/localgov/audits/villages/2015/silversprings.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

Southern Cayuga Lake Intermunicipal Water Commission

http://www.osc.state.ny.us/localgov/audits/jointacts/2015/southerncayugalake.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease

and the

Town of Westport

http://www.osc.state.ny.us/localgov/audits/towns/2015/westport.pdf?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215arelease 


MTA Faces $9.8 Billion Capital Plan ShortfallWhether the Metropolitan Transportation Authority (MTA) will be able to limit future fare and toll increases to 4 percent as planned will depend on the amount of capital funding made available by New York state and New York City, and whether the economy continues to grow without interruption as anticipated by the MTA, according to a report released by New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/sept15/092915.htm?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=092915release 


New York Medicaid Costs for Diabetes more than $1.2 BillionApproximately 460,000 New York Medicaid recipients diagnosed with diabetes received diabetes-related services costing more than $1.2 billion in state fiscal year (SFY) 2013-14, according to a report released by State Comptroller Thomas P. DiNapoli detailing the statewide costs of the disease.

http://www.osc.state.ny.us/press/releases/oct15/100215.htm?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100215release


Tentative Schedule for the Sale of State Obligations

New York State Comptroller Thomas P. DiNapoli announced a tentative schedule for the planned sale of obligations for the state, New York City, and their major public authorities during the fourth quarter of 2015.

http://www.osc.state.ny.us/press/releases/oct15/100115.htm?utm_source=weeklynews20151004&utm_medium=email&utm_campaign=100115release

Finding an individual guilty of disciplinary charges and imposing a penalty must be supported by substantial evidence

Finding an individual guilty of disciplinary charges and imposing a penalty must be supported by substantial evidence

2015 NY Slip Op 06924, Appellate Division, Second Department

An employee was served with disciplinary charges pursuant to Civil Service Law §75  alleging excessive absence and abuse of the employee’s leave privileges by the employee’s utilization of sick and personal leave on days that fell immediately before or after weekends, holidays, vacations, or other pre-approved absences on leave.

The hearing officer who conducted a hearing on the charges recommended that all of the charges and specifications be dismissed, and that the employee's 30-day suspension be nullified with full back pay. The employer, however, rejected the findings and recommendation of the hearing officer and determined that the employee was guilty of one charge of misconduct and neglect of duty.* The penalty imposed: suspension without pay for 30 calendar days.

The employee was served with disciplinary charges alleging excessive absence, abuse of leave privileges “utilizing sick and/or personal leave on days that fell immediately before or after weekends, holidays, vacations, or other pre-approved leave.

The employee initiated a CPLR Article 78 proceeding against the employer contending that the employer’s determination was not supported by substantial evidence. The Appellate Division agreed.

The Appellate Division explained that a court’s review of a determination rendered by an administrative body following "a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record." Citing 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, the court said that substantial evidence, "consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably—probatively and logically."

Noting that “the quantum of evidence that rises to the level of substantial' cannot be precisely defined, the court indicated that the inquiry is whether in the end “the finding is supported by the kind of evidence on which responsible persons are accustomed to rely in serious affairs."

The court decided that the employer’s determination that the employee had engaged in misconduct and neglect of duty by abusing her leave time privileges, and was excessively absent from work was not supported by substantial evidence.

Accordingly, the Appellate Division granted the employee’s grant the petition, annulled the employer’s determination, vacate the penalty imposed on the employee, and remit the matter to the employer to determine the amount of back pay and benefits owed to the employee.

* Presumably the allegation of “neglect of duty” was recited in the charges and, or, specifications served on the employee as an individual cannot be found guilty of allegations not set out in the charges or the specifications. Case law has long held that an employee may not be found guilty of acts of alleged misconduct or incompetence that have not been charged [see, for example, Shuster v Humphrey, 156 NY 231].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06924.htm

_________________

The Discipline Book, - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

  _________________

Imposing the penalty of termination must not be so disproportionate to the offense committed as to be shocking to the court's sense of fairness

Imposing the penalty of termination must not be so disproportionate to the offense committed as to be shocking to the court's sense of fairness

Monahan v City of Glen Cove, 2015 NY Slip Op 06920, Appellate Division, Second Department

An employee of the City of Glen Cove, Kevin Monahan, was served with disciplinary charges.  The City adopted the findings of a hearing officer, made after a hearing, that Monahan was guilty of fraud and offering a false instrument for filing. The penalty imposed: terminated of Monahan's employment.

Monahan appealed his dismissal from his position with the City, contending that a lesser penalty should have been imposed.

The Appellate Division said that a judicial review of an administrative determination made after a trial-type hearing directed by law is limited to whether the determination is supported by substantial evidence. Further, said the court, in the event there is conflicting evidence or different inferences may be drawn from the evidence in the record, "the duty of weighing the evidence and making the choice rests solely upon the [administrative tribunal]. The courts may not weigh the evidence or reject the choice made by [such tribunal] where the evidence is conflicting and room for choice exists."

The Appellate Division then noted that any “credibility issues were resolved by the hearing officer, and [it found] no basis upon which to disturb the hearing officer's determination, which, the court noted, was supported by substantial evidence.

As to the penalty imposed by the City, the court cited the so-called “Pell Doctrine”* and found that “Contrary to the [employee's] contention, under the circumstances presented, the penalty of termination of his employment was not so disproportionate to the offense committed as to be shocking to one's sense of fairness.”

* Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06920.htm

­­­­­­­­­­­­­­­­­______________

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/

______________