The essentials of challenging an employee disciplinary action where compulsory arbitration is involved

The essentials of challenging an employee disciplinary action where compulsory arbitration is involved

Davis v New York City Board/Department of Educ., 2016 NY Slip Op 02544, Appellate Division, First Department

Where the parties are subject to compulsory arbitration in determining an employee disciplinary matter pursuant to the terms and conditions set out in law or in a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law, due process requirements must be met in making the determination and the award cannot be arbitrary and capricious.
 
VHB, a tenured teacher employed by the New York Department of Education [Department], was served with disciplinary charges pursuant to Education Law §3020-a*. 

The Hearing Officer who conducted the disciplinary arbitration hearing found that the Department had provided VHB with assistance and numerous opportunities to improve her skills but concluded that VHB “was either unable or unwilling to adjust her teaching methods to comply with her supervisors' appropriate directives.” The penalty imposed on VHB: dismissal from her position.

VHB filed a petition pursuant to CPLR Article 75 seeking a court order annulling the arbitration award. The Appellate Division, explaining that Education Law §3020-a(5) limits judicial review of a hearing officer's determination to the grounds set out in CPLR §7511, said §7511, in relevant part,  provides that a court may vacate an arbitration award in the event the court finds that:

1. The rights of the party challenging the award were prejudiced by corruption, fraud or misconduct in procuring the award;

2. The arbitrator appointed as a neutral was not impartial;

3. The arbitrator exceeded his or her power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made;

4. There was a failure to follow the procedure of set out in CPLR Article 75 [except if the party applying  to vacate the award continued with the arbitration with notice of the defect and without objection].

In certain cases, however, the courts have adopted "a violation of a strong public policy standard" when considering petitions to vacate an arbitrator’s award. For example, in Matter of the Town of Callicoon, 79 NY2d 907, the Court of Appeals ruled that a court could vacate an arbitrator’s award if it determines that the award violated a strong public policy. 

The Appellate Division said that the award in VHB's case was not arbitrary and capricious and “was well supported by the evidence.” The Hearing Officer, said the court, had engaged in a through analysis of the facts and circumstances, evaluated witnesses' credibility, and arrived at a reasoned conclusion. VHB's due process rights were met as she was provided with notice, an appropriate hearing and the opportunity to present evidence and cross-examine witnesses.

As to VHB's claim that the arbitrator was prejudiced, court said that VHB “failed to sustain her burden of demonstrating bias or misconduct by the Hearing Officer, who did not exceed her powers.”

Addressing the penalty imposed on VHB, termination, the Appellate Division said that “the penalty of termination is not excessive” and denied VHB’s appeal in its entirety.

* See “letter of agreement” from NYC Department of Education Chancellor Klein to UFT President Michael Mulgrew dated April 15, 2010 concerning the processing and resolution of disciplinary charges filed against an educator employed by the New York City Department of Education pursuant to §3020-a of the Education Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02544.htm

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The suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time

The suspension of a tenured teacher requires the board of education to serve written disciplinary charges against the teacher within a reasonable amount of time

Appeal of Kavanaugh v Board of Education of the Hamburg Central School District, et al, Decisions of the Commissioner of Education, Decision No. 16,897

Martha A. Kavanaugh, a tenured teacher, appealed the decision of the Hamburg Central School District Board of Education placing her on "administrative leave and/or suspend[ing] her with pay” effective January 15, 2014. The noticed placing Kavanaugh in such status stated that the School Board was “investigating [her] conduct as a school district employee” and that “[w]hile on leave, you are not permitted on District grounds, including any school buildings.” 

On September 2, 2015, the School Board served disciplinary charges against Kavanaugh pursuant to Education Law §§3020 and 3020-a alleging “incompetence/neglect of duty and insubordination.” Kavanaugh requested an administrative hearing on these charges which the Commissioner’s decision indicates “appear to be pending” at the time the Commissioner considered Kavanaugh’s Education Law §310 appeal.

In this appeal Kavanaugh contended that the School Board’s action placing her on “administrative leave” on January 14, 2014, and thereafter extending her “suspension” on March 2, 2015, without filing disciplinary charges against her were unlawful.*

As redress, she asked the Commissioner to [1] declare such action by the Board null and void; [2] direct the Board to reinstate her to her former position; and [3] direct the Board to expunge any reference to the alleged unlawful suspension or to any disciplinary actions relating to that period of time from her personnel records.**  Additionally, Kavanaugh sought reimbursement of legal fees she had incurred as a result of the suspension; a declaration that Board’s actions violate both the Education Law and the Board members’ oath of office; that the Commissioner reprimand the respondents in this appeal; and an order directing such respondents to publicly apologize to her.

The School Board, in rebuttal, argued, among other things, that its placement of Kavanaugh on administrative leave was proper in all respects; that Kavanaugh failed to establish that Board acted in an arbitrary and capricious manner, and that Kavanaugh failed to state a claim. 

Addressing a number of procedural objections advanced by the School Board, the Commissioner ruled that as the Board’s action challenged by Kavanaugh “clearly affected [her] directly and she is asserting an adverse effect upon her personal and property rights as a result of being removed from her teaching duties,” Kavanaugh had standing to maintain her appeal.***

In response to the School Board’s argument that Kavanaugh’s challenging the Board’s actions of January 14, 2014 and March 2, 2015 regarding placing, or continuing, her on leave and/or suspending her with pay was untimely, the Commissioner ruled that Kavanaugh’s appeal was not untimely as these actions by the Board, if proven, would constitute a continuing wrong, commenting that “[t]he continuing wrong doctrine applies when the ongoing action is itself an unlawful action….”

Noting that the suspension of a tenured teacher requires a board of education to file written charges with the clerk or secretary of the board, the Commissioner ruled that “the suspension of a tenured teacher without the filing of such charges is ultra vires[acting beyond one's legal power or authority] and, thus, constitutes a continuing wrong” and, accordingly, Kavanaugh’s appeal was not untimely.

Addressing the merits of Kavanaugh’s appeal, the Commissioner again observed that “the suspension of a tenured teacher requires the board of education to file written charges within a reasonable amount of time, and that the suspension without the filing of charges is ultra viresand in violation of the individual’s tenure rights.” In this instance, said the Commissioner, a tenured teacher was suspended more than 19 months before disciplinary charges were served on her and she was prohibited from coming on school property and could not consult with her colleagues during this period.

Conceding that the School Board correctly asserted that a board of education has the right to place an employee on administrative leave pending an investigation and/or pending disciplinary charges being filed against an employee, the Commissioner said that, on this record, she found that the School Board’s actions constitute an unlawful suspension in the absence of the timely filing of disciplinary charges against Kavanaugh.  Accordingly, the Commissioner ruled that as the School Board did not act within a reasonable amount of time to prefer charges against Kavanaugh after removing her from teaching duties, “such removal must be deemed null and void and expungement is warranted.”

The Commissioner then directed “that any and all references to the January 14, 2014 placement of [Kavanaugh] on administrative leave and March 2, 2015 suspension be stricken from [Kavanaugh’s] records and personnel files [but that] nothing herein shall be construed as nullifying [the School Board’s] September 2, 2015 action to prefer charges pursuant to Education Law §3020-a."

* Kavanaugh did not challenge the §3020-a charges preferred against her by School Board on September 2, 2015 that were then the subject of the pending administrative hearing. 

** Kavanaugh also sought reimbursement of legal fees she incurred as a result of the suspension; a declaration that Board’s actions violate both the Education Law and the defendant Board members’ oath of office; that the Commissioner reprimand certain of the defendants; and the Commissioner order the School Board and the School Superintendent publicly apologize to her. The Commissioner indicated that she had no authority to provide such relief in an appeal pursuant to Education Law §310 were she to decide such relief, in whole or in part, was warranted.

*** The Commissioner dismissed that aspect of the Kavanaugh’s appeal that concerned the placement of a memorandum in her file pertaining to the assignments she was given while on leave and, or, suspension as untimely, explaining that Kavanaugh “commenced this appeal approximately three months after the issuance of the memorandum and offers no legal excuse for the delay.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16897

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Barbaralee Diamonstein-Spielvogel designated Chair of the New York State Council on the Arts

Barbaralee Diamonstein-Spielvogel designated Chair of the New York State Council on the Arts

Source: Office of the Governor

Governor Andrew M. Cuomo announced his designating Dr. Barbaralee Diamonstein-Spielvogel  Chair of the New York State Council on the Arts. Until now Dr. Diamonstein-Spielvogel served as Vice Chair.

The New York State Council on the Arts is dedicated to preserving and expanding the rich and diverse cultural resources that are and will become the heritage of New York’s citizens. The Council believes in supporting artistic excellence and the creative freedom of artists without censure, the rights of all New Yorkers to access and experience the power of the arts and culture, and the vital contribution the arts make to the quality of life in New York communities. NYSCA, serving all 62 counties, strives to achieve its mission through its core grant-making activity and by convening field leaders, providing information and advisory support, and working with partners on special initiatives to achieve mutual goals.

Throughout her career, Dr. Barbaralee Diamonstein-Spielvogel has served as a leading voice on civic and cultural engagement, having demonstrated a strong commitment to the arts, architecture, design, and public policy across New York City, New York State, and the country.

A former White House staff assistant, in 1966, she became the first Director of the New York City Department of Cultural Affairs. She later served as the longest-term Commissioner of the New York City Landmarks Preservation Commission from 1972 until 1987, and from 1987 to 1995, served as Chair of the New York City Landmarks Preservation Foundation. She has served as a member of the New York City Art Commission (now the Public Design Commission) and the New York City Commission of Cultural Affairs for more than a decade.

In 1987, she was appointed by President Reagan to the Board of the U.S. Holocaust Memorial Museum and in 1996 was appointed by President Clinton to the U.S. Commission of Fine Arts, where she later became the first woman to be elected as Vice Chair. In 2009, President Obama appointed her to the American Battle Monuments Commission.

Dr. Diamonstein-Spielvogel has served on the boards of a variety of educational, visual, literary, and performing arts institutions, including the Brooklyn Academy of Music, the Visiting Committee for Drawings at the Metropolitan Museum of Art; the Collection Committee of the Smithsonian Cooper Hewitt National Design Museum; the PEN American Center; the New York State Historic Archives Partnership Trust; and the Corcoran Gallery of Art in Washington, D.C. She is the founder and chair of the New York City Landmarks50 Alliance, and a founding member of the Highline, New York City, the Trust for the National Mall and the Museum of African Art in Washington, D.C.

Dr. Diamonstein-Spielvogel is the author of 23 books and the curator of eight international museum exhibitions. She earned her doctorate with high honors from New York University, and received honorary doctorates from the Maryland Institute College of Art, Longwood University, and the Pratt Institute.

Leaving employment without good cause will disqualify an applicant for unemployment insurance benefits

Leaving employment without good cause will disqualify an applicant for unemployment insurance benefits

Matter of Welsh (Commissioner of Labor), 2016 NY Slip Op 03042, Appellate Division, Third Department

One basis for disqualifying an applicant for unemployment insurance benefits is a determination that the individual left his or her employment without good cause.

Medina Welsh testified that in the course of her being considered for a promotion she submitted a falsified General Education Development certificate to the employer and then, “within minutes,” confessed the falsification to her supervisor. The supervisor warned Welsh that “she could be fired for such conduct.”Welsh then testified that she had submitted her resignation “because she did not want to have a termination on her record and hoped to be able to procure a job reference from the employer.”

The Unemployment Insurance Appeal Board denied Welsh's claim for unemployment insurance benefits and Welsh appealed the Board's ruling. The Appellate Division, however, sustained the Board’s determination, explaining that “quitting [one’s employment] in anticipation of discharge does not constitute good cause for leaving employment.”

Other court rulings sustaining the Unemployment Insurance Appeal Board’s denial of unemployment insurance benefits based on its finding that the claimant for such benefits did not leave his or her employment for good cause include:

Avoiding disciplinary action: Claimant’s election to accept the employer’s offer of an “early retirement package” instead of facing a scheduled disciplinary hearing for alleged misconduct, [Williams v NYC General Services, 256 AD2d 792].

Lack of valid license: The termination of a teacher from his or her position due to the lack of a valid teaching certificate did not constitute leaving one’s employment for good cause, [Matter of Duncanson (Commissioner of Labor), 115 AD3d 1106].

Harassment: Resignation from a position based on what the Appellate Division characterized as the employee's “perceived religious harassment” without first giving the employer an opportunity to investigate the matter, [Matter of Katz (Commissioner of Labor), 122 AD3d 993].

Job dissatisfaction: In Matter of Costello, 268 AD2d 845, the Appellate Division ruled that “dissatisfaction with one's employment, including assertions of being overworked, does not constitute good cause for leaving employment.”

Retirement incentive: Unemployment resulting from taking advantage of a severance package or an early retirement incentive does not constitute good cause for leaving one's employment

[Rubscha (Commissioner of Labor), 105 AD3d 1217].

Personal reasons: Claimant’s reasons for submitting his resignation  were found to be "personal and noncompelling," [Quintana v NYC Police Department, 297 A.D.2d 857].

Dissatisfaction with employer's business operations: “Dissatisfaction with an employer's method of doing business does not constitute good cause for leaving employment, particularly where the employee did not make a reasonable attempt to protect employment by notifying the employer about his or her concerns,” [Matter of French v Town of Lyndon, 79 AD3d 1515].

Resigning in anticipation of a layoff: Leaving one’s employment in anticipation of being laid-off is not leaving for good cause for the purposes of claiming, unemployment insurance benefits, [Matter of Thesing (Commission of Labor), 111AD3d 1015]. 

Provoked discharge:  A finding that the employee provoked his or her dismissal. In Matter of Rosseychuk (City of New York--Commissioner of Labor), 2016 NY Slip Op 01885, the Appellate Division said that a "Provoked discharge . . . is a narrowly drawn legal fiction designed to apply where an employee voluntarily engages in conduct which transgresses a legitimate known obligation and leaves the employer no choice but to discharge him [or her]."

Resignation to accept other employment:  Claimant had a valid offer of employment at the time he tendered his resignation but this offer of employment was subsequently rescinded by the prospective employer after it learned of Claimant’s arrest for “driving while ability impaired” and Claimant’s former employer would not allow him to withdraw or rescind his resignation, [Matter of Bennett (Commissioner of Labor), 106 AD3d 1359].

In contrast, leaving employment to relocate to another state in order to remain with one’s family typically will not disqualify an individual for unemployment insurance benefits,  [Rodriguez v Commissioner of Labor, 256 AD2d 768].

The Welsh decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03042.htm

Ruth Hassell-Thompson appointed Special Advisor For Policy And Community Affairs of New York State Homes And Community Renewal

Ruth Hassell-Thompson appointed Special Advisor For Policy And Community Affairs of New York State Homes And Community Renewal 
Source: Office of the Governor

Governor Andrew M. Cuomo appointed Ruth Hassell-Thompson as Special Advisor for Policy and Community Affairs of New York State Homes and Community Renewal. She will begin her new role in July 2016.

Hassell-Thompson has served in the New York State Senate since 2000. She is also a former City Council President and Acting Mayor of Mount Vernon, having been first elected to the City Council in 1993. She is also a retired nurse for Mount Vernon Hospital, specializing in pediatrics and substance abuse counseling and the founding President and CEO of “The Gathering,” a volunteer-staffed women’s center in Mount Vernon that provides counseling and support services, and has also worked extensively with individuals impacted by HIV/AIDS.

Prior to holding an elected office, she was President/CEO of Whart Development Company, Inc., a real estate development company that also provided consultant services to small and developing businesses. She was also the Executive Director of the Westchester Minority Contractors Association, helping to bring opportunities for growth and economic development to minority- and women-owned businesses in the region. Previously, she led the Westchester Community Opportunity Program, which provided medical, social and related support services to local residents in need.

Hassell-Thompson is the recipient of two Honorary Doctorate degrees; Mercy College, Doctor of Humane Letters; and Eastern Theological Consortium, Faculty of Arts and Sciences, Christ Theological Seminary, Doctor of Humanities. She is an alumna of Bronx Community College.

Maintaining "an attachment to the labor market" for the purposes of eligibility for workers’ compensation benefits

Maintaining "an attachment to the labor market" for the purposes of eligibility for workers’ compensation benefits

Cruz v Buffalo Bd. of Educ., 2016 NY Slip Op 03034, Appellate Division, Third Department

The New York State Workers’ Compensation Board requires that a claimant for benefits have “an attachment to the labor market” if he or she is seeking to receive partial disability benefits when he or she cannot perform the normal duties of his or her position but is able to perform other types of work.*

Such a claimant can maintain “an attachment to the labor market” by [1] making a diligent search for employment that he or she can perform notwithstanding the disability, [2] being employed in a position that is within his or her medical limitations such as working part-time or performing “light-duty” work or [3] self-employment. The entity paying the benefits may require the claimant to maintain appropriate records to demonstrate his or her “attachment to the labor market.”

The claim for workers’ compensation benefits filed by Edelmiro Cruz illustrates the application of the attachment to the labor market requirement.

Cruz, an assistant principal at a Buffalo City School District elementary school, suffered work-related injuries in May 2011 and was awarded workers' compensation benefits until he returned to work in August 2011. Cruz was terminated in February 2012 and subsequently applied for additional causally related lost earnings. The Buffalo City School District, a self-insured employer and its third-party administrator [Buffalo] controverted Cruz’s claim and raised the issue of his attachment to the labor market.Buffalo also alleged Cruz had made misrepresentations regarding his search for work.

A Workers' Compensation Law Judge denied benefits, finding that, due to a lack of a sufficient effort to find work, Cruz had voluntarily removed himself from the labor market. In addition, the Law Judge found that Cruz had made misrepresentations concerning his search for work and thus had violated Workers' Compensation Law §114-a. Cruz was disqualified from receiving further benefits.**

The Workers' Compensation Board, however, concluded that Buffalo had not submitted sufficient evidence to prove that Cruz had violated §114-a. Further, while the Board affirmed the Law Judge's determination that Cruz had voluntarily removed himself from the labor market following his termination, the Board also found that Cruz “had reattached to the labor market in February 2013.”

The Board restored the case to the calendar to address the issue of Cruz's reduced earnings subsequent to February 2013 and Buffalo appealed.

The Appellate Division affirmed the Board’s action explaining that "A claimant must demonstrate attachment to the labor market with evidence of a search for employment consistent with his or her medical restrictions" and the Board's determination as to whether a claimant has demonstrated an attachment to the labor market will be sustained if supported by substantial evidence.

In this instance medical evidence in the record indicated that Cruz, as a result of his injuries, could only sit or stand for no more than two hours a day and he could not lift more than 20 pounds. In addition Cruz had testified that [1] he began using the services of the Office of Vocational and Educational Services for Individuals with Disabilities [VESID] in January 2013; [2] he had obtained a part-time job at an auto parts store in February 2013, (and was working five hours a week at the time of his testimony); [3] he was training for a management position that offered more hours, and the store was willing to accommodate his "restrictions;" and [4] he was still searching for other work with a VESID job counselor.

Based upon the foregoing, said the court, the Board's decision that claimant had reattached to the labor market as of February 2013 is supported by substantial evidence.

Addressing Buffalo’s contention that Cruz made “a material misrepresentation in violation of Workers' Compensation Law §114-a,” the Appellate Division again said that the Board's determination with respect to this issue will not be disturbed if supported by substantial evidence.

Buffalo had relied on the report and testimony of a vocation counselor. The counselor testified that she had contacted 34 companies by telephone with which Cruz reported that he had filed an application for employment between February 2012 and February 2013. Although the counselor confirmed that two of the companies had received an application from Cruz, she also testified that 17 companies either did not respond or could not verify whether or not they had received an application and the counselor conceded that Cruz could have applied for employment with them.

Further, the Board noted that the counselor did not report the name of the individuals she had spoken with and concluded that, although Cruz had not presented sufficient evidence to establish that he had remained attached to the labor market during the period in question, there was a lack of credible evidence that he had knowingly made a false statement or misrepresented a material fact in order to obtain benefits.

As "the Board is vested with the discretion to evaluate witness credibility and to weigh conflicting evidence," the Appellate Division ruled that Board's decision that Buffalo had not met it burden of proof with respect to its allegation that Cruz’s violated §114-a of the Workers' Compensation Law was supported by substantial evidence.

* A claimant for workers’ compensation benefits temporarily totally disabled is deemed unable to perform any work and is not required to maintain “an attachment to that labor market” while so temporarily totally disabled. An individual found permanently totally disabled is not required to maintain an attachment to the labor market in any event.

** Workers' Compensation Law §114-a provides for the disqualification of an individual for worker’s compensation benefits in the event he or she has made a false statement or representation in applying for such benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03034.htm