Failing to prove that the union breached its duty of fair representation in challenging an arbitration award is fatal to employee's appeal

Failing to prove that the union breached its duty of fair representation in challenging an arbitration award is fatal to employee's appeal

Henvill v Metropolitan Transp. Auth., 2017 NY Slip Op 01785, Appellate Division, First Department

Winston Henvill, an employee of the Metropolitan Transportation Authority [MTA],  filed a CPLR Article 75 petition seeking to vacate the arbitration award resulted in the terminated his employment with MTA upon his being found guilty of misconduct. 

Supreme Court dismissed Henvill's petition and the Appellate Division unanimously affirmed the lower court's ruling.

The Appellate Division initially explained that Henvill "failed to adequately plead a claim for breach of the duty of fair representation against the Metropolitan Transportation Authority Police Benevolent Association [PBA], his collective bargaining unit's representative, finding that none of the allegations in Henvill's complaint demonstrated that PBA's conduct, in representing Henvill at the arbitration hearing which resulted in his termination, was arbitrary, discriminatory or conducted in bad faith.

Thus, said the court, as Henvill failed to state an unfair representation claim against PBA, his claim against his employer, MTA, alleging a breach of the relevant collective bargaining agreement, must also fail.

The Appellate Division also noted that Henvill had failed to demonstrate the existence of any of the statutory grounds for vacating the arbitrator's award set out in Article 75 such as fraud, bias or the failure to follow proper procedure.  

In addition, the court rejected what it characterized as Henvill's major argument: the arbitrator's fact-finding was irrational and required vacatur in view of "the well-settled principle that courts in considering a petition to vacate a voluntary arbitration may not review the arbitrator's findings of fact."

Finally, said the court, "we perceive no reason to overturn the imposed penalty of termination."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01785.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

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New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 18, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending March 18, 2017
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Woman arrested for alleged theft of NYS Retirement benefits and welfare fraud

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a five-count indictment charging Tammy Banack, a resident of Kirkville, New York, with one count of Grand Larceny in the Second Degree, a class C felony, one count of Welfare Fraud in the Third Degree, a class D felony, two counts of Grand Larceny in the Third Degree, a class D felony, and one count of Offering a False Instrument for Filing in the First Degree, a class E felony.

http://www.osc.state.ny.us/press/releases/mar17/031317.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20170319&utm_campaign=fiscal+oversight

Man alleged to have pocketed his deceased mother's retirement benefits

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the unsealing of a one-count indictment charging Jimmie Buie, a resident of Brooklyn, with Grand Larceny in the Third Degree, a class D felony. Jimmie Buie is alleged to have stolen over $23,000 in pension benefits issued by the New York State and Local Employees Retirement System to his deceased mother, Sandra Buie, between May 2011 and December 2012.

http://www.osc.state.ny.us/press/releases/mar17/031617b.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20170319&utm_campaign=fiscal+oversight

New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued:

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

New York State Health Insurance Program - Long Island Bone and Joint, LLP waived Empire Plan members’ out-of-pocket costs resulting in overpayments on claims submitted by LI Bone and Joint.

State University of New York - State University of New York Upstate Medical University’s Billing Practices

Prohibiting a patron of a public library from access to the library for violation of the library's Code of Conduct

Prohibiting a patron of a public library from access to the library for violation of the library's Code of Conduct

R.T. v Freeport Memorial Library, Decision of the Commissioner of Education, Decision #17,060

The Freeport Memorial Library[Library] R.T.'s library use privileges were being suspended for a period of one year due to repeated violations of the Library’s Code of Conduct [Code] policy, contending that over a period of eight separate days, R.T. Had violated the Code by using his cellular telephone, speaking in an inappropriate manner to Library staff, and not vacating a computer when directed to at closing time. The letter also noted that R.T. had previously received a one-month suspension for Code violations and advised him that if he were to return to the Library prior to the conclusion of the one-year suspension, he will be deemed a trespasser and the police will be contacted. 

R.T. appealed the determination to Library’s board of trustees. The board dismissed his appeal, observing “that the use of a library 'is a privilege, not a right' and the Library’s board must consider the conduct of one individual in light of how it affects other Library patrons.”  The board's letter also noted that R.T. was “cited in approximately 17 different incidents reported in writing by approximately 12 separate members of the [Library’s] staff.” R.T. appealed the board's decision to the Commissioner, contending that the board's decision was “draconian” and that the allegations that he violated the Code are too vague “as a matter of fact, as a matter of law,” for him to properly respond to, and he specifically notes an alleged failure of the Library to provide him with a “bill of particulars.”

In his defense, R.T. offered alternative explanations for his conduct, such as, having “sensitive files” on the computer at closing time, that he used his cellphone but in areas designated for such use, or that certain Library staff have personal grievances against petitioner. He also argued that the suspension by the Library constitutes a violation of his rights under the United States and New York Constitutions including due process and equal protection.

In constructing her ruling, the Commissioner of Education Elia said that “Education Law §310 states in part that the Commissioner is 'authorized and required to examine and decide' a petition 'made in consequence of any action ... [b]y any trustees of any school library concerning such library, or the books therein, or the use of such books' (emphasis added in the opinion). Accordingly, the Commissioner ruled that R.T.'s appeal of the Library’s one-year suspension of his library use privileges is properly before her.

After dismissing R.T.'s appeal was moot, as the “penalty time” had passed, the Commissioner elected to address the merits of R.T.'s appeal regarding the penalty imposed by the board in view and R.T.'s complaint that “the Library’s determination to suspend his library use privileges for one year was excessive and constituted a penalty against petitioner beyond the scope of authority authorized by law.”

The Commissioner affirmed the board decision, finding that the suspension of R.T.’s library use privileges for various violations of the Library’s Code of Conduct was reasonable under the circumstances, noting that Education Law §262 states, in relevant part, that Every library established under section two hundred fifty-five of this chapter shall be forever free to the inhabitants of the municipality or district or Indian reservation, which establishes it, subject always to rules of the library trustees who shall have authority to exclude any person who wilfully violates such rules . . .  (emphasis added in the Commissioner's decision).

The Commissioner's decision concludes by observing that “On the facts of this case, I cannot find that the Library acted in an arbitrary and capricious manner in suspending petitioner’s library privileges. Petitioner engaged in disruptive behavior that violated the Library’s Code on several occasions, despite being put on notice from a prior suspension of privileges that he needed to cease his disruptive behavior.  …. I cannot find that a one-year suspension of library use privileges is excessive considering the numerous Code violations documented against petitioner, the responsibility that respondents have to the other patrons of the Library and to maintain a safe and orderly environment for the Library’s staff and the protection of its property, and that this one-year suspension was not petitioner’s first suspension from use of the Library.”

The decision is posted on the Internet at:  

http://www.counsel.nysed.gov/Decisions/volume56/d17060

___________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Withdrawing a letter of resignation

Withdrawing a letter of resignation

Lust v State of New York, 2017 NY Slip Op 01742, Appellate Division, Third Department

Francis Lust visited his employer's Human Resources office and told a personnel associate of his intention to retire. The personnel associate said that a letter of resignation was required and, upon Lust's request, prepared a letter of resignation on his behalf stating that "This letter serves as my intent to resign for purposes of retirement on March 30, 2015 close of business."  Lust reviewed and signed the letter without making any changes. The Director of Human Resources and, by letter dated February 11, 2015, she informed petitioner that his resignation had been accepted.*

On February 16, 2015, Lust informed the Director that, "due to financial reasons, he would not be able to retire as intended and, therefore, his earlier letter of resignation was "no longer valid." Lust's letter seeking to withdraw his resignation was rejected and he was told that his last day of employment would be, and was, March 30, 2015.

Lust initiated a CPLR Article 78 proceeding asserting, among other things, that the denial of his request to rescind his letter of resignation was arbitrary and capricious, an abuse of discretion or affected by an error of law. Supreme Court dismissed the petition and Lust appealed.

The Appellate Division agreed with the Supreme Court decision, holding that Lust was required to obtain the consent of the appointing authority before he could withdraw his resignation. The court said that 4 NYCRR 5.3(c ) of the Rules for the Classified Service, provides that a resignation tendered by an employee of the State as the employer in the classified service "may not be withdrawn . . . after it is delivered to the appointing authority, without the consent of the appointing authority."**

In this instance the Appellate Division concluded that the appointing authority had lawfully delegated its power of appointment to the chief executive officer [CEO] of the facility, who, in turn, by letter lawfully authorized the Director of Personnel to be his designee on "all matters related to employee relations and concerns" with "full authority to make decisions regarding whether to accept a resignation and, likewise, whether to deny a request to rescind a resignation from any such employee of the facility.

Accordingly, said the court, Lust's delivery of his letter of resignation to the Director on constituted delivery to CEO and, thus, petitioner could not unilaterally withdraw his resignation.

Holding that the question of "Whether to permit the withdrawal of a delivered letter of resignation is a matter committed to the sound discretion of the appointing authority, and such a determination will be disturbed only if it constituted an abuse of discretion or was arbitrary and capricious," the Appellate Division dismissed Lust's appeal.

* Acceptance of a letter of resignation is not required for the resignation to be operative, all that is required is its timely delivery to the appointing authority or the appointing authority's designated representative.

** Many local civil service commissions have adopted a similar rule or regulation.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2017/2017_01742.htm

The Commissioner of Education does not have jurisdiction to consider claims that an employee organization breached its duties of fair representation

The Commissioner of Education does not have jurisdiction to consider claims that an employee organization breached its duties of fair representation

Decisions of the Commissioner of Education, Decision 17,054

Gloria J. Parker, a tenured teacher, filed an appeal with the Commissioner of Education challenging her placement on paid administrative leave by her employer, the Board of Education of the City School District of the City of Rochester. She also named as respondents in her appeal the Rochester Teachers Association (“RTA”) and New York State United Teachers (“NYSUT”).

With respect to RTA and NYSUT, Parker contended that both organizations “failed to provide her with adequate representation.”

RTA and NYSUT argued that in addition to Parker's failure to properly serve her complaint upon them, the Commissioner should dismiss both organizations from the action as “each is an unincorporated association over which the Commissioner of Education has no direct jurisdiction.”

Essentially RTA and NYSUT claim that the Commissioner of Education lacks jurisdiction over an employee organization or a labor organization.

The Commissioner agreed, explaining that Education Law §310 provides that “any person considering himself aggrieved by an action taken at a school district meeting, by the trustees of a school district or library, or by any other official act or decision of a school officer or authority may seek review of such action or decision in an appeal to the Commissioner of Education. Education Law.” In the words of the Commissioner, “§310 does not authorize the Commissioner to review actions taken by an organization such as the teachers' association."

Accordingly, the Commissioner dismissed Parker's claims with respect to RTA and NYSUT “for lack of jurisdiction,” noting that with respect to Parker's allegation concerning the adequacy of representation provided by RTA and, or, NYSUT, the Public Employment Relations Board [PERB] has exclusive jurisdiction over claims of improper employee organization practices, including allegations that the employee organization breached its duty of fair representation.

The Commissioner's decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17054

Appellate Division finds penalty of dismissal imposed on educator shocking to its sense of fairness

Appellate Division finds penalty of dismissal imposed on educator shocking to its sense of fairness

Matter of Beatty v City of New York, 2017 NY Slip Op 01628, Appellate Division, First Department

The penalty of termination of employment was imposed upon Amira Beatty, a special education home instruction teacher having a 17-year unblemished record, by the New York City Department of Education [DOE] based upon the hearing officer's finding that she had submitted time sheets falsely stating that she had provided instruction to a disabled student and inaccurately indicating that she had reported to certain DOE schools and libraries over a two-month period.

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division ruled that "Notwithstanding Beatty's misconduct, under the circumstances presented here, the penalty of termination shocks our sense of fairness."

The court, quoting from Bolt v NYC Department of Education, 145 AD3d 450, explained that "[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved."

At the time of the incident in question, said the court, Beatty was confronted with an extraordinary situation -- "Superstorm Sandy" impact on the City had displaced both Beatty and her student from their respective homes and had adversely affected  transportation in the City.

The genesis of this disciplinary action: Beatty had filled out the time sheets in question in advance of the dates to which those time sheets pertained. She did not, in fact, proceed to provide instruction to the disabled student on the days set forth in those time sheets in the aftermath of Hurricane Sandy and submitted the time sheets without correction on a subsequent date. However, the Appellate Division noted that because she had instructed other students on each of the dates in question, she would have received the same salary regardless of how many students she had instructed or how many hours she had spent with them, and thus derived no benefit from her misstatements on the time sheets.

The court characterized Beatty's misconduct as "more a matter of lax bookkeeping than implementation of any venal scheme" as there was no intent to defraud or theft of services on her part, and the harm to the public and to the DOE was mitigated.

At the hearing, Beatty admitted that she was guilty of submitting reports stating that she had provided instruction to the disabled student on certain dates when she had not done so and that she had reported to various schools and libraries on certain dates when she had not done so. Acknowledging that her misconduct warrants punishment as the disabled student was deprived of the services of a teacher for two months, Beatty did not seek to set aside the findings of misconduct contained in the hearing officer's opinion, but only to modify the penalty imposed on her.

Noting that Beatty had acknowledged her error in judgment and has pledged to change her practices and never to repeat the error, the Appellate Division found no evidence that "[Beatty] could not remedy her behavior." Accordingly, the court found that the penalty of termination was disproportionate to the level of Beatty's misconduct and exceeds the standards that society requires to be applied to this offense.

The court concluded that rather than constituting a case of extended, intentional and self-serving misconduct or repeated and continuous neglect of duty, "this was an isolated instance of neglect occurring under circumstances of extraordinary personal hardship and involving a teacher who had an otherwise unblemished and longstanding record." "Had Superstorm Sandy not upended her life," said the court, "there is no indication that [Beatty's] wrongdoing would have occurred. As it is highly unlikely that the extraordinary situation presented in this case will recur, the factors of general and specific deterrence do not come into play."

[N.B. Presiding Judge Friedman and Judge Andrias  dissented in a memorandum by Judge Andrias.]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01628.htm

___________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

___________________

State Department of Audit and Control holding more than $14 billion in unclaimed funds

State Department of Audit and Control holding more than $14 billion in unclaimed funds

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced that his office has over $14.5 billion in unclaimed funds and urged New Yorkers to see if any of it belongs to them. In State Fiscal Year 2015-16

DiNapoli’s office set a national record for the third consecutive year for the most unclaimed funds returned in one year totaling $452 million.

Individuals are not the only entities for whom the Comptroller is holding unclaimed funds pursuant to the Abandonded Property Law. The Comptroller is also holding monies that may be claimed by State and local governments such as:

Name	Address	Reported By
SCHOOL DISTRICT ACCOUNTS PAY	C/O SHENENDEHOWA CENTRAL SCH D 5 CHELSEA PL CLIFTON PARK NY 12065	SCHOLASTIC BOOK CLUBS INC
SCHOOL DISTRICT NORT	5355 W TAFT RD N SYRACUSE NY	NEW YORK TELEPHONE CO
SCHOOL DISTRICT OF ALBANY	ACADEMY PARK ELK STREET ATTN ACCTS PAYA BLE ALBANY NY 12207	CDW LLC
VILLAGE OF ALEXANDRIA BAY	P O BOX 367 WATERTOWN NY 13601	W B MASON CO INC
VILLAGE OF ALFRED	WATER DEPARTMENT 7 WEST UNIVERSITY STREE T ALFRED NY 14802	ALFRED UNIVERSITY
VILLAGE OF ALFRED POLICE DEPT	7 W UNIVERSITY ST ALFRED NY 14802	GALLS LLC
TOWN OF BATAVIA	8477 STRINGHAM DR BATAVIA NY 14020	NATIONAL GRID - NIAGARA MOHAWK POWER CORP
TOWN OF BEDFORD JUSTICE	161 BUXTON ROAD BEDFORD HILLS NY 10507	CITIBANK NA NATIONAL COMPLIANCE GRP
TOWN OF BETHEL NY	PO BOX 300 3454 RTE 55 WHITE LAKE NY 12786

CITY OF BUFFALO

CITY HALL ROOM 117 BUFFALO NY 14218

INTEGON INDEMNITY INSURANCE CO

CITY OF NEW YORK	C/O LEOPOLD GROSS & SOMMERS PC BROOKLYN NY 11241	STATE FARM FIRE & CASUALTY CO
CITY OF NEW YORK	CO RAYMOND ZAGAMI 624 6 STREET BROOKLYN NY 11215	CITIBANK NA NATIONAL COMPLIANCE GRP
CITY OF NEW YORK	COMMUNITY SCHOOL DISTRICT 17 19 DURYEA P L BROOKLYN NY 11226	YALE UNIVERSITY

UUP BENEFIT TRUST FUND

800 TROY-SCHENECTADY ROAD #3306628 LATHAM NY 12210

CIGNA HEALTH & LIFE INSURANCE CO

CSEA INC FINANCE DEPT	143 WASHINGTON AVE ALBANY NY 12210	OWEGO ASSOCIATES INC
CSEA LOCAL 350	75 VARICK STREET 7TH FLOOR NEW YORK NY 10013	AUTOMATIC DATA PROCESSING INC
CSEA LOCAL 430	45 MALL DR COMMACK NY 11725	DESMOND HOTEL

There are hundreds of other such governmental jurisdictions and employee organizations listed. Individuals and organizations can search the Comptroller's data base of unclaimed funds to see if the Comptroller is holding any of their property in the Abandoned Property Fund by clicking: https://ouf.osc.state.ny.us/ouf/?wicket-crypt=4mZX_EiLHOw

Blocking computer threats with innovative technologies

Blocking computer threats with innovative technologies

Source: The CEO's Guide to Data Security - An AT&T publication

The recently published fifth report in this series of AT&T's Cybersecurity Insights addresses Data Security and chapters focus on the following topics:

1. Blueprint for cybersecurity innovation;

2. Data;

3. Applications;

4. Connected devices;

5. Network; and

6. Data center and cloud

The publication is posted on the Internet at: https://www.business.att.com/cybersecurity/docs/vol5-datasecurity.pdf

The first four reports in AT&T's Cybersecurity Insights series are:

What Every CEO Needs to Know About Cybersecurity

The CEO's Guide to Securing the Internet of Things

The CEO's Guide to Cyberbreach Response

and

The CEO's Guide to Navigating the Threat Landscape

These four earlier reports are available on the Internet by clicking here

Disciplinary hearing postponed “without prejudice” pending successful completion of a probationary period with another agency

Disciplinary hearing postponed “without prejudice” pending successful completion of a  probationary period with another agency 
Click on text highlighted in color  to access the full text of the decision

The Administration for Children’s Services (“ACS”) brought disciplinary charges against one of its employees. Prior to the first scheduled conference at New York City Office of Administrative Trials and Hearings [OATH], the employee took leave from ACS and accepted a new position with another agency. The employee sought to adjourn the conference, but ACS moved to go forward with case.

OATH Administrative Law Judge John W. Burns removed the disciplinary matter from OATH’s calendar without prejudice because employee is on leave from ACS pending successful completion of probationary period of employment with her new agency. Should the employee return to ACS on or before the end of her probationary period at the other agency, ACS shall have the right to re-file the charges and move forward with the disciplinary proceeding at that time.

Admin. for Children’s Services v. M.S., OATH Index No. 2054/16, mem. dec. (Jan. 11, 2017).

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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

________________________

 

An administrative disciplinary hearing, in whole or in part, may be closed to the public under certain, and limited, circumstances

An administrative disciplinary hearing,  in whole or in part, may be closed to the public under certain, and limited, circumstances 

2017 NY Slip Op 01473, Appellate Division, First Department

Although an administrative disciplinary hearing typically is open to the public, there are limited exceptions to this general rule as is demonstrated by this decision by the Appellate Division, First Department.

A New York City police officer was alleged to have engaged in sexual misconduct with a minor. In the course of the disciplinary hearing that followed, the Deputy Commissioner, as an  exercise of discretion, closed the hearing to the public during the minor's testifying concerning the police officer's alleged sexual misconduct.

The Appellate Division sustained the Deputy Commissioner's action in closing the hearing to the public while the minor testified "[g]iven the sensitive nature of the case and the victim's desire not to testify in front of her mother."

Noting that the Deputy Commissioner's findings of misconduct, sexual and otherwise, were supported "a preponderance of the credible evidence — namely, the forensic computer records, text messages, controlled calls, and [the police officer's] own statements upon his arrest — supported the minor victim's version of the events" the court, citing Tighe v Kelly, 305 AD2d 274, leave to appeal denied 100 NY2d 513, said that the penalty imposed on the police officer, termination, "does not shock the judicial conscience," given the findings that he had engaged in sexual misconduct with a minor.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_01473.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

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