Arbitration award found "imperfectly executed" vacated

Arbitration award found "imperfectly executed" vacated

Matter of The Professional, Clerical, Tech. Empls. Assn. (Board of Educ. for Buffalo City Sch. Dist.), 2018 NY Slip Op 04128, Appellate Division, Fourth Department

Supreme Court granted the petition submitted by The Professional, Clerical, Technical Employees Association [Association] seeking to confirm an arbitration award and denied the Board of Education for Buffalo City School District's [Board] cross petition seeking a court order vacating the arbitration award.

The Appellate Division unanimously reversed the Supreme Court's ruling, on the law, and vacated the arbitration award, explaining:

1. The arbitration proceeding arose from Board's plan to transfer* certain employees previously assigned to work at a single location to new positions requiring them to alternate between two different work locations.

2. The arbitrator's opinion and award, among other things, found that Board had  involuntarily transferred the Association's grievants "to new positions" in violation of the collective bargaining agreement between the parties, and directed the Board to compensate the grievants "for work performed at more than one location from November 30, 2013 until the end of the 2016 Budget Year."

3. Vacatur of the arbitration award is appropriate where the award failed to set forth the manner of computing monetary damages as CPLR Article 75 provides, in pertinent part, that an arbitration award "shall be vacated" where the arbitrator "so imperfectly executed [the award] that a final and definite award upon the subject matter submitted was not made."**

The court noted that the Board's affidavit in support of the cross petition contained a statement that "none of the affected employees was terminated or had his or her compensation reduced as a result of the allegedly wrongful transfers."

However, said the Appellate Division, the arbitration award does not explain the basis for the arbitrator's directing the Board provide compensation allegedly owed to the grievants, nor does the award detail how that compensation should be calculated. Rather, said the court, "[i]t appears that the arbitrator merely copied verbatim the remedy requested by [the Association] rather than making findings of his own."

Accordingly, the Appellate Division reverse the Supreme Court's order, denied the Associations petition, granted the Association's cross petition, vacated the arbitration award, and remitted the matter to Supreme Court.

In addition, Supreme Court was instructed to then remit the matter to the arbitrator to determine whether any compensation is due the Association's grievants, and, if so, "to determine the amount of such compensation or how it can be calculated with reasonable precision."

* Although the term "transfer" is used to describe the personnel change that resulted in the submission of this grievance, the term "reassignment" would be a more accurate of the personnel change in this instance. A movement of an individual from one position to a second position subject to the jurisdiction of the same appointing authority is typically described as a "reassignment." In contrast, the movement of an employee from one position to a second position under the jurisdiction of a different appointing authority would constitute a "transfer" [see Rules for the Classified Civil Service of the County of Erie, Rule XVI].

** An award is indefinite or nonfinal within the meaning of the statute only if it leaves the parties unable to determine their rights and obligations; if it does not resolve the controversy submitted; or if it creates a new controversy.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04128.htm

Benefits available to certain New York City management personnel modified by subsequent personnel order issued by the mayor

Benefits available to certain New York City management personnel modified by subsequent personnel order issued by the mayor

Matter of Kinach v de Blasio, 2018 NY Slip Op 04425, Appellate Division, First Department

The New York City Mayor's Personnel Order No. 2016/1 established certain paid leave benefits and modified a planned salary increase and reduced the amount of annual leave for managers with 15 or more years of experience. In addition, the order provided that, effective December 22, 2015, such New York City personnel subject to the order would be entitled to 30 days paid parental leave (PPL) every 12-month period for the birth of a child, adoption, or foster care.

MPO 2016/1 modified MPO 2015/1 and MPO 2015/2 by eliminating a 0.47% wage increase scheduled to go into effect on July 1, 2017 and modified the annual leave schedule for covered titles by eliminating the accrual of the 26th and 27th annual leave days, capping the accrual of annual leave days at 25 days, in order to fund these benefits.

Petitioners, five managers all over the age of forty (40) and not in a collective bargaining unit within the meaning to Article 14 of the Civil Service Law, advanced a number of challenges MPO No. 2016/1 with respect to the modification of the benefits set out in MPO 2015/1 and MPO 2015/2.

Addressing Petitioners' claims of unlawful discrimination based on age, the Appellate Division held that Petitioners "failed to state a claim of age discrimination" as defined in the Administrative Code of City of NY §8-107, the New York City Human Rights Law or Executive Law §296[1][a] the New York State Human Rights Law and the adverse action alleged by Petitioners did not occur under circumstances giving rise to an inference of discrimination.

The court explained that the Petitioners' claim [a] was based upon the false premise that women over 40 years of age cannot bear children, [b] ignored the fact that PPL benefits were available to biological fathers, regardless of age, who becomes a parent through adoption or by fostering, and [c] was undercut by Petitioners' submission of data reflecting that members of their age group received PPL benefits.

In the words of the Appellate Division, "MPO No. 2016/1 is facially neutral and applies equally to all covered employees, regardless of age ... and no disparate impact has been shown" by Petitioners.

Addressing Petitioners equal protection argument, the court said Petitioners failed to demonstrate any violation of Article 1, §11 of the New York State Constitution as "MPO No. 2016/1 treats all similarly situated employees alike." Further, the Appellate Division found that the State's "non-impairment clause" set out in Article V, §7, of the State Constitution was "not implicated as the challenged action does not involve a change directly related to retirement benefits.

Considering the Petitioners' arguments challenging the "cost-cutting" measures the City elected to use "to pay for the PPL benefit," the Appellate Division held that the method selected by the City was not arbitrary and capricious and, notwithstanding Petitioners' claim that less extreme cost-cutting measures should have been taken, the court explained that such a belief "does not render [the City's] determination irrational."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04425.htm

Rejection of a hearing officer's finding of fact and determination by the appointing authority

Rejection of a hearing officer's finding of fact and determination by the appointing authority

Kelly v New York State Justice Ctr. for The Protection of People With Special Needs, 2018 NY Slip Op 03407, Appellate Division, Third Department

The Petitioner in this action was employed by the Office for People with Developmental Disabilities at the Brooklyn Developmental Disabilities Service Office as a treatment aid.

The New York State Justice Center for The Protection of People With Special Needs [Justice Center] received a report alleging that Petitioner "committed acts of neglect when [she] breached [her] duty towards multiple service recipients by failing to use appropriate and professional language in their presence."

Ultimately Justice Center informed Petitioner that after reviewing the evidence presented, it determined that a preponderance of the evidence supported a finding of abuse or neglect pursuant to Social Services Law §494 and the matter involving Petitioner's alleged "acts of neglect" was referred to Respondent's Administrative Hearings Bureau.

Following the hearing, an Administrative Law Judge [ALJ] concluded that the evidence did not establish that Petitioner had committed an act of neglect. Justice Center, however, rejected the ALJ's recommendation, finding that, "by a preponderance of the evidence," Petitioner had committed neglect. Petitioner then commenced an CPLR Article 78 proceeding challenging Justice Center's determination, which was transferred to the Appellate Division.

Petitioner argued that the Justice Center was required to adopt the ALJ's recommended decision.* The Appellate Division held that Petitioner's argument was "without merit."  It also disagreed with Petitioner's contention that Justice Center's regulation 14 NYCRR 700.13 conflicts with Social Services Law §494(1)(b), noting that the statute does not require that the ALJ's decision be final and binding upon Justice Center. Instead, the statute merely states that, in the event that a petition is not sustained by the ALJ, such finding must be reflected upon an amended record.

Addressing the authority of Justice Center's "Chief of Staff" to render a final determination, the Appellate Division ruled that "the death of Justice Center's Executive Director did not diminish the Chief of Staff's authority to act as a designee of the Executive Director and, as such designee, render a final determination."

Public Officers Law §9, in pertinent part, provides ... Deputies, their appointment, number and duties. Every deputy ... in case of [the officer's] absence from the office or  his [or her] inability to act, or in case of a vacancy in the office, and if he [or she] shall fail to make such designation, the deputy ... shall so act. If a vacancy in a public office shall be caused by the death of the incumbent, the deputies shall, unless otherwise provided by law, continue to hold office until the vacancy shall have been filled in  accordance with law.

* With respect to court upholds appointing authority's rejection of hearing officer findings, In the Matter of Linda Ziehm, 90 A.D.2d 677, Affd, 59 N.Y.2d 757, the Appellate Division held that where the record contained substantial evidence affording a rational basis for the appointing authority determination, the appointing authority's determination will be sustained. See, also, Delgrande v Greenville Fire Dist., 126 AD3d 968 and Perfetto v Erie Co. Water Auth., 298 A.D.2d 932.  [The appointing authority may reject the findings and recommendations of a hearing officer if its decision is supported by substantial evidence.] Further, in Weill v New York City Dept. of Educ., 61 AD3d 407, the decision notes that the administrative body, rather than its attorney, must indicate the basis for its administrative action or decision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03407.htm

Commissioner of Education found it unnecessary to certify "that respondent appeared to have acted in good faith" for the purposes indemnifying them for costs and expenses

Commissioner of Education found it unnecessary to certify "that respondent appeared to have acted in good faith" for the purposes indemnifying them for costs and expenses

Appeal of William King Moss III regarding a staff appointment, Decisions of the Commissioner of Education, Decision No. 17,409

Although the Commissioner dismissed this appeal for failure to serve a "necessary party" -- here the staff member whose appointment was challenged by Mr. Moss -- the Commissioner addressed an administrative matter.

The respondents in this appeal to the Commissioner had requested that the Commissioner "certify that “all board members” and the superintendent acted in good faith within the meaning of Education Law §3811(1) thereby authorizing the board to indemnify certain individuals for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of duties.

 

Education Law §3811, in relevant part, provides that "Whenever the trustees or board of education of any school district ... [shall] defend any action brought against them ...  all their costs and reasonable expenses, as well as all costs and damages adjudged against them, shall be a district charge and shall be levied by tax upon the district."

Although the Commissioner observed that is appropriate to issue such certification unless it is established on the record that the requesting respondent[s] acted in bad faith, in this instance the Commissioner found it unnecessary to so certify because, in the words of the Commissioner, respondent’s costs in defending this proceeding are, by operation of statute, a cost upon the district, and no claims are interposed against any individual board members."

Accordingly, as respondent’s costs in defending an action or proceeding against the board are deemed a cost upon the district by Education Law §3811 and no individual board members are a party to this appeal, the Commissioner found that she "need not certify that respondent appeared to have acted in good faith."

In addition, the Commissioner found it unnecessary to grant respondent’s request with respect to the superintendent as he is not a party to the instant proceeding and, thus, was  not obligated to defend himself within the meaning of Education Law §3811.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17409

An adminsitrative tribunal may not rely on evidence not in the record in arriving at its decision

An adminsitrative tribunal may not rely on evidence not in the record in arriving at its decision

Kaplan v New York City Tr. Auth., 2018 NY Slip Op 04068, Appellate Division, Third Department

It is "black letter law" that all administrative agencies must render decisions based on the evidence contained in the record pertaining to the particular case before it.

In this case the Workers' Compensation Board [Board] ruled that the employee's death did not arise out of and in the course of his employment* and denied his survivor's [Claimant] application for workers' compensation death benefits.

The Appellate Division, noting that as required of every administrative agency, the Board must render decisions based on the evidence contained in the record pertaining to the particular case before it said that here the Board relied on medical records "apparently contained in the case file for a separate claim" filed by decedent based on a 2014 fall at work and that one page is the only medical record from 2014 that was included in the current record.

The Board, said the court, relied heavily upon medical records contained in the case file for the 2014 claim although the employer did not request that the Board rely on those 2014 records. Further was the procedure for introducing additional evidence into the administrative appeal that was not before the Workers' Compensation Law Judge was not complied with and the Board's rule provides that, if that procedure is not followed, the Board "will not" consider such new evidence.

The Appellate Division said that Claimant was prejudiced because she was not on notice  until she received the Board decision that the Board would rely on documents from another case file.

The employer contended that 2014 medical reports cannot be objectionable because they accurately reflect the treatment rendered. The court said it could not verify that claim without reviewing those reports.

The Appellate Division also rejected the employer's argument "that no response to the medical records would change the strength of either side's argument"  as constituting "mere speculation" and had those records been properly introduced, either party "may have chosen to submit additional medical records reflecting on decedent's medical treatment from November 2014 until his death in July 2015 had the parties been on notice that this period of treatment would be at issue."

Finally, the court said it could not assume that the Board would have reached the same decision had it not considered the medical records from the earlier case file in view of the fact that "[t]he Board referred to more than one of those medical records, indicated that it considered at least 27 pages and quoted at length from one 2014 document that it found to be 'most telling with respect to the cause of the decedent's death,'" noting that "[i]n one specific finding, the Board stated that any presumption of compensability was rebutted by Brief's medical opinion and the medical evidence in the case file associated with the other claim."

Finding that the Board improperly relied upon documents outside the record, which were not before Court for its review, the Appellate Division reversed the Supreme Court's ruling dismissing Claimant's appeal and remitted the matter to the Board "for further proceedings not inconsistent with this Court's decision."

* To be compensable under the Workers' Compensation Law, an accidental injury must arise both out of and in the course of employment. In situations where there an unwitnessed or unexplained death occurs during the course of employment is involved, the claimant is relieved of the obligation to submit prima facie medical evidence of a causal relationship but that presumption "may be rebutted if substantial evidence demonstrates that the death was not work related."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04068.htm

Adjudicating the impact of a statute or a regulation that impairs obligations of the parties set out in collective bargaining agreements

Adjudicating the impact of a statute or a regulation that impairs obligations of the parties set out in collective bargaining agreements

Buffalo Teachers Fedn., Inc. v Elia, 2018 NY Slip Op 04061, Appellate Division, Third Department

This appeal sought court review of three determinations of the Commissioner of Education resolving disputes between the Buffalo Federation of Teachers [Federation] and the Buffalo City School District [District] concerning the negotiation of a receivership agreement pursuant to the Education Transformation Act of 2015* which provided for the "[t]akeover and restructuring of failing schools."

The Act restricts the subject matter of the receivership agreement to "the length of the school day; the length of the school year; professional development for teachers and administrators; class size; and changes to the programs, assignments, and teaching conditions in the school receivership." The Act further provides that if the parties are unable to reach an agreement with regard to "unresolved issues" must ultimately be submitted to the Commissioner for resolution, whereupon "the Commissioner has five days to resolve the issues in accord with standard collective bargaining principles."

One of the question presented in this appeal was whether the Act was "reasonable and necessary to further the significant and legitimate public interest in 'maximiz[ing] the rapid achievement of students' at schools deemed to be persistently struggling and struggling" with respect to the impairment of provisions set out in a collective bargaining agreement between the parties.

Citing Energy Reserves Group, Inc. v Kansas Power and Light Co., 459 US 400, the Appellate Division observed that "[g]enerally, where a statute or regulation impairs a private contract, courts will defer to a legislature's rationale with regard to its necessity."

In contrast, said the court, less deference is warranted [to the legislature's rationale] where the statute or regulation "is self-serving and impairs the obligations of [the state's] own contracts" because "a [s]tate is not completely free to consider impairing the obligations of its own contracts on a par with other policy alternatives." Further, the Appellate Division continued, "less deference [to the legislature's rationale] may be warranted even where, as here, the state is not a party to an impaired public contract."

The tests applied in determining if an impairment is reasonable and necessary under a "less deference scrutiny" analysis, must be shown that the state did not:

"(1) consider impairing the contracts on par with other policy alternatives; or

"(2) impose a drastic impairment when an evident and more moderate course would serve its purpose equally well; nor

"(3) act unreasonably in light of the surrounding circumstances."

Assuming, without deciding, that the "less deferential standard" applied in this instance, the Appellate Division found that applying the relevant provision of the Education Law was  reasonable and necessary both on its face and as applied, explaining that "the receivership agreement was necessary in order to implement available methods to address the immediate issues that were facing the struggling or persistent struggling schools."

The court observed that the statute provides that the Superintendent of Schools must act in accordance with the existing collective bargaining agreement and, "where, as here, a receivership agreement is requested, the statute limits the scope of the agreement — and impairment." Further, "no modification or impairment can be unilaterally imposed but instead must be negotiated."

The Appellate Division concluded that "As applied, although an agreement was not reached with regard to all issues, the modifications imposed were applicable to the affected schools only for the time limited by the statute" which applied prospectively and limited the scope, application and duration of any modifications to existing agreements, while prohibiting any adverse financial impact. This, said the court, "was reasonably designed and necessary to further the goal of helping students to succeed."

Noting that the Federation contended that there were "means and methods that would be much more effective," the Appellate Division decided that "the relative wisdom of the statute is not for [it] to consider" and  remitted the matter to State Education Department for "further proceedings not inconsistent with this Court's decision."

* Laws of 2015, Chapter 56, Part EE, Subpart H, §§1 and 2.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04061.htm