The standards used by the courts in reviewing arbitration awards

The standards used by the courts in reviewing arbitration awards

Noel v Bianco, 2016 NY Slip Op 07398, Appellate Division, First Department

Supreme Court denied the petition filed by Lesly Noel seeking a court order vacating an arbitration award terminating his employment with the New York City Transit Authority for misconduct. The Appellate Division unanimously affirmed the lower court’s ruling.

The decision indicates that the arbitration award was promulgated pursuant to a “voluntarily-entered collective bargaining agreement” and thus was not subject to a heightened level of judicial scrutiny. Citing New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, the Appellate Division said that in such situations “courts are not permitted to review an arbitrator's findings of fact, including credibility determinations.”

In contrast, where the parties are forced to engage in compulsory arbitration, as was the situation in Hamilton v Alley, 137 AD3d 1564,the court ruled that judicial review under CPLR Article 75 requires that the "award be in accord with due process and supported by adequate evidence in the record."

In Bernstein [Norwich City School Dist. Bd. Of Education], 282 AD2d 70, which involved a challenge to an Education Law §3020-a disciplinary proceeding, the Appellate Division concluded that the applicable standard for review of the arbitration award in Bernstein's case was whether there was substantial evidence in the record to establish the employee's guilt with respect to the disciplinary charges levied against him.

The Bernstein court also pointed to CPLR Section 7803 as authority to adopt a "substantial evidence" standard in appeals from a §3020-a determination. In the words of the court: “[W]e must determine "whether there is a rational basis in [the whole record] for the findings of fact supporting the [Hearing Panel's recommendation]."

The Noel decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_07398.htm

Termination of a police officer on General Municipal Law §207-c leave under color of Civil Service Law §71

Termination of a police officer on General Municipal Law §207-c leave under color of Civil Service Law §71

Stewart v. County of Albany, 300 A.D.2d 984, Motion to appeal denied, 100 N.Y.2d 505

General Municipal Law §207-c provides for the “Payment of salary, wages, medical and hospital expenses of policemen with injuries or illness incurred in the performance of duties.” In contrast, CSL §71, typically referred to as “Workers’ Compensation Leave,” provides for leave without pay in the event an employee is injured in the performance of his or her duties.*

In Olsen v Dormer, 13 Misc 3d 1236(A),** Supreme Court addressed a challenge by a police officer receiving General Municipal Law §207-c benefits to his termination from his position by his employer under color of Civil Service Law §71.

A NYPPL reader, referring to NYPPL’s summary of the Olsen decision, wrote: 

“This is certainly a well constructed position representing a ‘dissent’ with an Appellate Court decision - [Stewart v. County of Albany, 300 A.D.2d 984, 085 (3d Dept. 2002) (‘Upon our review of Civil Service Law § 71 and its legislative history, we find it clearly within the Sheriff's authority to avail himself of the termination procedures therein outlined to remove a disabled correction officer-even one receiving General Municipal Law §207-c benefits-from the County payroll’)]. While I understand the inviolability of statutory 207-c benefits, an issue arises as to benefits not addressed by the statute, most notably medical insurance. Short of termination, I am not sure by what process an employer would be able to discontinue that fringe benefit. Must the taxpayers continue to foot the bill for family medical insurance coverage ‘forever’ should the employee be unable to return to duty? In practical application my HR consulting firm has been involved in multiple terminations (under CSL §71) of employees on 207-c leave (supported by legal representation) without challenges (thus far.)"

NYPPL's response to the reader's comments concerning Stewart is set out below:

In Stewart v. County of Albany, 300 A.D.2d 984, the Appellate Division said: "Upon our review of Civil Service Law §71 and its legislative history, we find it clearly within the Sheriff's authority to avail himself of the termination procedures therein outlined to remove a disabled correction officer - even one receiving General Municipal Law §207-c benefits from the County payroll".

NYPPL respectfully disagree with the Appellate Division's views concerning the application of CSL §71 and GML §207-c as set out in Matter of Stewart.

In NYPPL's opinion, an individual receiving §207-c benefits as the result of a work-related disability [and, indeed, GML §207-a with respect to firefighters receiving similar benefits] remains an employee and is continued on the payroll of the appointing authority, albeit in a leave of absence at full pay status, and is not placed simultaneously, or independently, on leave pursuant to §71 of the Civil Service Law.

Further, in NYPPL's view, such an individual is to be continued in such status as an employee until he or she is found medically qualified to return to full duty or "light duty," is retired on disability or otherwise, dies or becomes superannuated for the purposes of §207-c. As the employee is not place on §71 leave, independently or in concert with §207-c, he or she is not subject to removal from his or her position pursuant to §71 of the Civil Service Law after the minimum statutory period permitted by law.

Footnote 2 in Stewart states:

Consistent with its statutory purpose, the Sheriff's resort to Civil Service Law §71 was presumably 'to secure a steady, reliable, and adequate work force' (Matter of Duncan v New York State Dev. Ctr., 63 NY2d 128, 135; see Matter of Allen v Howe, 84 NY2d 665, 672),^† i.e., he wanted to hire another correction officer to replace petitioner. However, termination of employment under Civil Service Law §71 does not necessarily involve a termination of benefits awarded pursuit to General Municipal Law §207-c, as such benefits 'are a property interest that may not be terminated without procedural due process under the Fourteenth Amendment' (Matter of Gamma v Bloom, 274 AD2d 14, 16; see Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, 691; Matter of Meehan v County of Tompkins, 219 AD2d 774, 775). Nor does our determination have any effect on the separate dispute between these parties concerning whether petitioner can perform light duty."

^†NB:Neither Duncan nor the two individuals in Allen [Cathy Allen and Diane Spiegel] were employees eligible for GML §207-c benefits.

While NYPPL agrees with the Appellate Division’s conclusion that the Sheriff "wanted to hire another correction officer to replace petitioner," this does not resolve the underlying issue: the employment status of the individual receiving the §207-c benefit and source of the funds necessary for the compensation to be paid to (1) the replacement and to (2) the individual receiving §207-c benefits upon the appointment of his or her replacement.

Indeed, the relevant language of GML §207-c provides a statutory imperative that the individual involved return to active duty once found medically qualified to do so. Once his or her disability abates sufficiently to permit this or, in the alternative, he or she is directed to return to perform a "light duty" assignment if found medically qualified to do so, the individual risks having his or her §207-c benefits discontinued by the appointing authority should he or she fail to do so.

Contrast this with §71, whereby should the employee be terminated and thereafter determined to be qualified to resume the duties of his or her former position and there is no suitable vacancy available at the time, the individual's name is to be placed on a preferred list, and his or her name is to be continued on such list for four years unless earlier appointed to a suitable vacancy.

In NYPPL's view, the only means available to the appointing authority to lawfully "terminate" an individual in a §207-c leave situation and not qualified for reinstatement to full or light duty is to file an employer application on behalf of the employee for accidental disability retirement or performance of duty disability retirement benefits pursuant to GML §207-c.2  should the employee declines to do so, which decision by the Employees' Retirement System would control as otherwise provided by law.

In contrast, an individual receiving GML §207-c benefits becomes ineligible for such benefits if he or she "ceased to be an inhabitant within the geographical restrictions" set by law as the court explained in O'Connor v Town of Clarkstown, 221 AD2d 444. No such "geographical restriction" is placed on an individual on §71 leave. 

As to the Sheriff's desire to "replace" the individual during the disabled employee’s absence on §207-c leave, he or she may do so by establishing an appropriate "supernumerary position," provided that there are funds available sufficient for this purpose.

Without engaging in an extended analysis of §207-c, suffice it to note that in support of NYPPL's view that the individual remains an employee and is to be continued on the payroll -- i.e., he or she is not terminated and is not paid by means other than via salary or wages, Subdivision 6 of §207-c provides, in pertinent part, as follows:

6. Notwithstanding any provision of law contrary thereto contained herein or elsewhere, a cause of action shall accrue to the municipality for reimbursement in such sum or sums actually paid as salary or wages and, or, for medical treatment and hospital care as against any third party against whom the policeman shall have a cause of action for the injury sustained or sickness caused by such third party [emphasis supplied].

Accordingly, absent the individual continuing in an "employee status" and continuing to receive his or her "salary or wages" it could be argued that the appointing authority could not maintain a cause of action to recover such payments.

* An employee on §71 leave may elect to remain on the payroll by using his or her accrued leave credits and other accruals and benefits at “full or half-pay” until they are exhausted.

** NYPPL’s summary of Olsen v Dormer, 13 Misc 3d 1236(A), posted on the Internet at http://publicpersonnellaw.blogspot.com/2013/08/termination-of-police-officer-while-on.html

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The Disability Benefits E-book – 2016 Edition: This 814 page electronic book [e-book] focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information concerning this e-book click on: http://section207.blogspot.com/

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Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious

Giving an employee a negative performance rating because the rater “didn’t have time” to rate the employee’s performance is irrational, arbitrary and capricious

Decisions of the Commissioner of Education, Decision #16,985

Leanna Mercedes appealed the decision of the New York City Department of Education [DOE] that sustained her “D” rating on her annual professional performance review.

Mercedes, a probationary assistant principal, was given a Doubtful or “D” rating for the school year by the school’s Interim Acting Principal [Principal]. This resulted in Mercedes filing a complaint with DOE’s Office of Equal Opportunity and Diversity Management (“OEO”) alleging that Principal had unlawfully discriminated against her in giving her a “D” rating. OEO’s investigation substantiated Mercedes’ allegation that Principal had violated DOE’s non-discrimination policy as set out in DOE’s Chancellor’s Regulation A-830.  Notwithstanding OEO’s finding, DOE notified Mercedes that her appeal of her “D” rating was denied.  Mercedes appealed DOE’s decision to the Commissioner of Education.

The Commissioner said that “based on the record before me, I find that [Mercedes] has demonstrated that the Chancellor's determination sustaining her “D” rating was arbitrary and capricious and made in gross error and [her] appeal must be sustained.”

Mercedes had contended that the “D” rating [1] “violated the Department’s policies and regulations because it was completely devoid of any supporting documentary evidence;” [2] the “D” rating was baseless and discriminatory; and [3] the “D” rating was arbitrary and capricious and cannot be sustained because the evaluation violated the Department’s rules and regulations. 

In rebuttal, DOE had argued that Mercedes’ petition [1] failed to state a claim upon which relief may be granted; [2] that some or all of her claims may be barred, in whole or in part, by the doctrine of res judicata; and [3] it had followed the “proper procedures” in issuing the “D” rating.

DOE also contended that its “ratings guidelines are not legally binding on the Department and that Mercedes’ “D” rating was supported by documentation.”

After addressing a number of procedural issues that were decided in Mercedes’ favor, the Commissioner noted that the Chancellor’s designee stated in his decision letter that the “D” rating was sustained "as a consequence of insufficient time to make an accurate assessment of [Mercedes’] performance." This explanation, said the Commissioner, lacks a rational basis and was in gross error.

Further, observed the Commissioner, “[t]he record is devoid of any support for [Mercedes] ”D” rating,” noting that the sole reason given for sustaining the rating is that the Interim Acting Principal had “insufficient time to accurately assess Mercedes’ performance.” However, said the Commissioner, the record indicated that despite the Interim Acting Principal’s “short time in that position,” he was able to provide a rating of “satisfactory” to two other male assistant principals. 

In any event, the Commissioner explained that “assigning a rating based on the principal’s inability to rate the employee’s performance lacks a rational basis and is arbitrary and capricious” and directed DOE to remove the challenged Doubtful “D” rating for the from Mercedes' personnel file.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d16985