Additional judicial scrutiny required in reviewing a compulsory arbitration proceeding

Additional judicial scrutiny required in reviewing a compulsory arbitration proceeding

Hamilton v Alley, 2016 NY Slip Op 01928, Appellate Division, Fourth Department

William E. Hamilton, a tenured administrator  employed by Jordan-Elbridge Central School District [District], was terminated from his position following a disciplinary hearing conducted pursuant to Education Law §3020-a(5). Hamilton initiated an Article 75 action challenging his dismissal by the District, seeking a court order directing his reinstatement to his former position with the District.*

With respect to Thomas’ contention that Supreme Court “failed to apply the correct standard of review,” the Appellate Division said that in its view the lower court “properly identified and applied the ‘additional layer of judicial scrutiny’ applicable to a compulsory arbitration proceeding,** and it recognized and appropriately decided the matter on the basis that the arbitrator's decision had evidentiary support and was not arbitrary and capricious.”

As the court held in City School District of New York v McGraham, 17 NY3d 917, such “additional layer of judicial scrutiny” involves the court finding that the award has “evidentiary support” and “neither being arbitrary nor capricious.”

Although the Appellate Division concluded that “there was no rational basis for the Hearing Officer to apply the crime exception with respect to amended charges Nos. 7 and 8” and modified the order accordingly, this did not affect the penalty imposed on Thomas, termination.

Although Thomas contended that the Hearing Officer had imposed an inappropriate penalty, termination,” the Appellate Division opined that "[i]n light of the litany of specifications proven against [Thomas], the penalty of dismissal does not shock the conscience."

* The Appellate Division noted that Supreme Court erred in determining that Thomas’ special proceeding was not timely commenced and that his supporting papers and amended petition were not timely served. However, said the court, in any event Supreme Court addressed the merits of Thomas’ amended petition.

** See Powell v Board of Educ. of Westbury Union Free School Dist., 91 AD3d 955, summarized at http://publicpersonnellaw.blogspot.com/2012/02/where-arbitration-is-statutorily.html

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01928.htm

______________________ 

The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

______________________

Failing to provide a fair hearing requires the voiding a Civil Service Commission’s decision sustaining the termination of an employee by the appointing authority

Failing to provide a fair hearing requires the voiding a Civil Service Commission’s decision sustaining the termination of an employee by the appointing authority

Pinheiro v. Civil Service Comm. for the Cnty. of Fresno, California Court of Appeal, Docket F070473

John Pinheiro was dismissed from his position as the County of Fresno’s labor relations manager. The County of Fresno Civil Service Commission sustained Pinheiro termination and he filed a “writ of mandate” seeking a court order vacating the Commission’s decision.

Pinheiro contended that his right to a fair trial* was violated because the Commission:

(1) relied on evidence obtained outside the Commission hearing;

(2) used law enforcement records as a factor in sustaining his termination;

(3) relied on acts of alleged misconduct more than three years old;

(4) relied on evidence that was not admitted and excluding evidence relevant to his defenses; and

(5) relied on evidence of contact with another individual prior to any directive prohibiting such contact.

The trial court sustained the Commission’s action. However, the California Court of Appeals vacated the lower court’s ruling, explaining that Pinheiro had not been given a fair trial because the Commission considered and relied on information taken outside the hearing in reaching its decision.

Citing La Prade v. Department of Water & Power, 27 Cal.2d 47, the court said “The decision … should be based on the record and not on off-the-record discussions from which the parties are excluded,” indicating that administrative tribunals exercising quasi-judicial powers which are required to make a determination after a hearing cannot act on their own information and nothing may be treated as evidence which has not been introduced as such, inasmuch “as a hearing requires that the party be apprised of the evidence against him in order that he [or she] may refute, test and explain it.”

As Pinheiro had no opportunity to refute or explain such information, the Court of Appeals reversed the trial court’s ruling and remanded the matter to the Commission for a new hearing as “Pinheiro was denied a fair hearing” by the Commission.

* The court said that the “fair trial” requirement of California’s Code of Civil Procedure §1094.5 is not synonymous with constitutional due process and does not mandate “a formal hearing under the due process clause,” [see Pomona College v. Superior Court, 45 Cal.App.4^th1716]. What is required, said the court is simply a “fair administrative hearing,” that affords the individual a reasonable opportunity to be heard.

The decision is posted on the Internet at:

http://cases.justia.com/california/court-of-appeal/2016-f070473.pdf?ts=1459283424

An individual or organization must have “standing” in order to maintain an Article 78 action challenging an administrative decision

An individual or organization must have “standing” in order to maintain an Article 78 action challenging an administrative decision

Thomas v New York City Dept. of Educ., 2016 NY Slip Op 02154, Appellate Division, First Department

Michael P. Thomas, then a public school teacher, employed by the Manhattan Center for Science and Mathematics (MCSM), filed allegations with the New York City Department of Education [DOE’ that the court characterized as involving “a misappropriation of federal funds received by MCSM under Title I, Part A of the Elementary and Secondary Education Action of 1965, reauthorized as the No Child Left Behind Act (NCLB) of 2001.”

DOE, following an administrative investigation, determined that Thomas’ allegations of misappropriation of Title I funds were unsubstantiated. Thomas then initiated the Article 78 action challenging DOE’s determination. Supreme Court dismissed Thomas’s petition; the Appellate Division affirmed Supreme Court’s decision.

The Appellate Division ruled that Thomas, although a member of MCSM's School Leadership Team lacks standing to challenge the results of DOE's investigation of his allegations he had brought pursuant to "No Child Left Behind Written Complaint and Appeal Procedures" adopted by the New York State Education Department.

The court explained that Thomas’ status as a complainant who initiated an administrative investigation did not give him standing to maintain “a private right of action to challenge the agency's determination” unless he could demonstrate that he had suffered an actual injury as a result of DOE’s decision. The court concluded that Thomas had failed to demonstrate that he had “suffered and actual injury” as a result of DOE’s administrative determination.

Another obstacle to Thomas' ability to maintain the action, said the Appellate Division, was that Thomas did not "fall within the zone of interests . . . sought to be promoted or protected" by Education Law §2590-h or the NCLB”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02154.htm

Selected reports issued by the Office of the State Comptroller during the week ending April 2, 2016

Selected reports issued by the Office of the State Comptroller during the week ending April 2, 2016

Click on text highlighted incolor to access the entire report 

Fairport Industrial Development Agency- Unauthorized Practices for Economic Development Agencies

Officials with the Village of Fairport Industrial Development Agency made a series of financial and accounting transactions outside their legal authority, including granting $1 million worth of inappropriate gifts and commercial loans, according to an audit released by State Comptroller Thomas P. DiNapoli. An audit of the Fairport Urban Renewal Agency was also released citing similar issues.

http://www.osc.state.ny.us/press/releases/mar16/033116a.htm?utm_source=weekly+news&utm_medium=email&utm_term=ida+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Niagara Frontier Transportation Authority – Improvements Recommended

Almost 20 percent of the Niagara Frontier Transportation Authority’s assets are not in a state of good repair and it is unclear how the authority prioritizes capital improvements, according to an audit released by New York State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/apr16/040116.htm?utm_source=weekly+news&utm_medium=email&utm_term=public+authorities&utm_content=20160403&utm_campaign=fiscal+oversight 

State Departments and Authorities

Department of Health- Early Assessment of the Encounter Intake System

Managed Care Organizations (MCOs) are contractually required to submit encounter transactions to inform DOH about each medical service provided to their enrolled recipients. Auditors found most Medicaid MCOs (42 of 52) were not ready to submit Medicaid encounter data to the new Encounter Intake System (EIS) by the Sept. 2015 implementation date. In response to the audit, DOH officials provided additional guidance to these plans and subsequently reported that the number of Medicaid MCOs ready to submit encounter transactions to the EIS improved from 10 to 43 by Nov. 20, 2015.

http://osc.state.ny.us/audits/allaudits/093016/15s41.pdf

Department of Health– Oversight of the Early Intervention Program’s State Fiscal Agent
DOH generally provides effective oversight of the SFA that helps ensure early intervention (EI) claims are paid in a timely manner and the SFA fulfills contract deliverables related to customer service and data and reporting. Program claims are paid more quickly now than at the onset of the SFA, and DOH is working to resolve older unpaid claims.

http://osc.state.ny.us/audits/allaudits/093016/15s22.pdf

Office of Temporary and Disability Assistance – Wage Subsidy and Transitional Employment Programs

OTDA provided adequate support and guidance to contractors to assist them in reporting Wage Subsidy Program and Transitional Employment program performance outcomes and preparing vouchers for wage subsidies and achieving milestones. However, OTDA’s system for tracking and monitoring milestones and goal attainment is outdated.

http://osc.state.ny.us/audits/allaudits/093016/15s58.pdf?utm_source=weekly+news&utm_medium=email&utm_term=state+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Department of Health- Eye Care Provider and Family Inappropriately Enroll as Recipients and Overcharge for Vision Services

http://osc.state.ny.us/audits/allaudits/093016/13s1.pdf?utm_source=weekly+news&utm_medium=email&utm_term=state+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Metropolitan Transportation Authority - Forensic Audit of Select Payroll and Overtime Practices and Related Transactions

http://osc.state.ny.us/audits/allaudits/093016/15f14.pdf?utm_source=weekly+news&utm_medium=email&utm_term=state+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Department of Motor Vehicles - Internal Control System Components

http://osc.state.ny.us/audits/allaudits/093016/15s66.pdf?utm_source=weekly+news&utm_medium=email&utm_term=state+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Public Service Commission - Pipeline Safety Oversight

http://osc.state.ny.us/audits/allaudits/093016/15s31.pdf?utm_source=weekly+news&utm_medium=email&utm_term=state+audit&utm_content=20160403&utm_campaign=fiscal+oversight

State Education Department - Compliance With the Reimbursable Cost Manual

http://osc.state.ny.us/audits/allaudits/093016/15s45.pdf?utm_source=weekly+news&utm_medium=email&utm_term=state+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Department of Transportation - Performance Based Bus Safety Program

http://osc.state.ny.us/audits/allaudits/093016/15s71.pdf?utm_source=weekly+news&utm_medium=email&utm_term=state+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Municipal Audits

Town of Ashford - Water District

http://www.osc.state.ny.us/localgov/audits/specialdists/2016/ashfordwater.pdf?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Town of Busti - Taxpayer Equity

http://www.osc.state.ny.us/localgov/audits/towns/2016/busti.pdf?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Genesee County - Purchasing

http://www.osc.state.ny.us/localgov/audits/counties/2016/genesee.pdf?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Nanticoke Volunteer Fire Department - Misappropriation of Funds

http://www.osc.state.ny.us/localgov/audits/firedists/2016/nanticoke.pdf?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Oswego County - Transfer Station Cash Receipts

http://www.osc.state.ny.us/localgov/audits/counties/2016/oswego.pdf?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20160403&utm_campaign=fiscal+oversight

School Audits

Alexandria Central School District - Financial Condition

http://www.osc.state.ny.us/localgov/audits/firedists/2016/nanticoke.pdf?utm_source=weekly+news&utm_medium=email&utm_term=municipal+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Lyons Central School District - Multiyear Planning

http://www.osc.state.ny.us/localgov/audits/schools/2016/lyons.pdf?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Pearl River Union Free School District - Competitive Procurement

http://www.osc.state.ny.us/localgov/audits/schools/2016/pearlriver.pdf?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Valhalla Union Free School District - Financial Condition

http://www.osc.state.ny.us/localgov/audits/schools/2016/valhalla.pdf?utm_source=weekly+news&utm_medium=email&utm_term=school+audit&utm_content=20160403&utm_campaign=fiscal+oversight

Key elements in the proposed 2016-2017 New York State Budget

Key elements in the proposed 2016-2017 New York State Budget

Source: Office of the Governor

Key elements in the proposed 2016-2017 New York State Budget

1· Raising the minimum wage to $15 an hour in every region of the state

2· Enacting the longest and most comprehensive paid family leave policy in the nation

3· Holding the growth in state spending to two percent for the sixth consecutive year

4· Cutting the personal income tax, saving middle class New York taxpayers nearly $6.6 billion in the first four years, with annual savings reaching $4.2 billion by 2025

5· Providing $24.8 billion in School Aid – the highest in state history – and ending the Gap Elimination Adjustment

6· Investing $55 billion in the largest state transportation plan ever approved – including $27 billion for the DOT and Thruway and $27 billion for the MTA

A comprehensive summary of the proposed budget is posted on the Internet at:

https://www.governor.ny.gov/news/governor-cuomo-and-legislative-leaders-announce-agreement-2016-2017-state-budget

Basics in processing claims of unlawful discrimination and, or, unlawful retaliation

Basics in processing claims of unlawful discrimination and, or, unlawful retaliation

Russo v New York State Div. of Human Rights, 2016 NY Slip Op 01951, Appellate Division, Fourth Department

In its decision in the Russo case the Appellate Division set out the basics in processing claims of unlawful discrimination and, or, unlawful retaliation as follows:

Unlawful discrimination

"To establish a prima facie case of employment discrimination, petitioner [is] required to demonstrate that [he or] she [is] a member of a protected class, that she [or he] was qualified for [his or] her position, that she [or he] was terminated from employment or suffered another adverse employment action, and that the termination or other adverse action occurred under circumstances giving rise to an inference of discriminatory motive.

If the court deems that a prima facie case has been made, "The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision.

If the employer is able to satisfy this requirement, "In order to nevertheless succeed on her [or his] claim, [petitioner] must prove that the legitimate reasons proffered by the [employer] were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason."

Unlawful retaliation

"In order to make out a claim for unlawful retaliation under state or federal law, a [petitioner] must show that (1) [he or] she [had] engaged in protected activity, (2) her [or his] employer was aware that [he or] she participated in such activity, (3) she [or he]  suffered an adverse employment action based upon [his or] her activity, and (4) there is a causal connection between the protected activity and the adverse action'  

Again, once that showing is made, "the burden then shifts to [the employer] to present legitimate, independent and nondiscriminatory reasons to support [its] actions.

“Then, if [the employer] meet[s] this burden, [petitioner] has the obligation to show that the reasons put forth by [the employer] were merely a pretext."

Arthea Russo filed a complaint with the New York State Division of Human Rights [SDHR] alleging that she had suffered adverse employment action while employed by the City of Jamestown Police Department [Department] because of her gender. Adopting the findings of the Administrative Law Judge [ALJ] who conducted the public hearing, SDHR dismissed her complaint alleging unlawful discrimination and retaliation. Russo then initiated an Article 78 action seeking a court order annulling SDHR’s dismissal of her complaint.

The Appellate Division said its review of SDHR’s determination is limited to the issue whether it is supported by substantial evidence, explaining that "[c]ourts may not weigh the evidence or reject [SDHR's] determination where the evidence is conflicting and room for choice exists. Thus, when a rational basis for the conclusion adopted by [SDHR] is found, the judicial function is exhausted."

The court found that in this instance there was substantial evidence to support SDHR’s determination that Russo was not discriminated against by the Department because of her gender.

Although agreeing with SDHR's determination that most of the employment actions at issue were not adverse because they did not constitute "materially adverse change[s] in the terms and conditions of [Russo’s] employment," the Appellate Division concluded that the three-day suspension imposed on Russo did, in fact, constitute an adverse employment action.

Notwithstanding this conclusion, the court explained that “[e]ven assuming, arguendo, that the imposition of the adverse employment action occurred under circumstances giving rise to an inference of discrimination, [it] nevertheless [concluded] that [Russo’s] employer … presented a legitimate, independent and nondiscriminatory reason to support its employment decision.”

Further, the court noted that there was substantial evidence in the record to establish that Russo, in her role as a court security supervisor, subjected one or more persons “to heightened security measures on a regular basis either for personal reasons or for no legitimate reason” and that she caused her male subordinate to do the same. In addition, the court said that there was substantial evidence to establish that Russo engaged in an excessive use of her personal cell phone and in excessive socializing while on duty.

The Appellate Division also found that Russo could not establish disparate treatment nor could she establish that she was subjected to unlawful retaliation.

Finally the court opined that “Even assuming, arguendo, that [Russo] met her initial burden [of demonstrating unlawful acts of discrimination], we nevertheless conclude that the [Department] presented a legitimate, independent and nondiscriminatory reason for issuing a counseling memorandum on sexual harassment based on evidence that [Russo]  had been sharing sexually explicit material that she had on her cell phone” and Russo “failed to establish that the reason for the memorandum was pretextual.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01951.htm