Delegating the authority to make a final disciplinary decision and the determination of the penalty to be imposed to another

Delegating the authority to make a final disciplinary decision and the determination of the penalty to be imposed to another

Matter of Stukes v City of White Plains, 2018 NY Slip Op 05474, Appellate Division, Second Department

The Executive Director of the Commission [Director] initiated disciplinary charges against his subordinate, an Assistant Director [Assistant] alleging that Assistant had violated policies prohibiting workplace violence following the Assistant's having had an altercation with Director at the workplace. After a hearing before a hearing officer, the hearing officer found Assistant guilty of  "13 of the factual specifications alleged in the charges" served on Assistant and recommended termination of Assistant from his employment with the Commission.

Director disqualified himself from reviewing the hearing officer's recommendations and making a final determination in consideration of the fact that he had preferred the charges against Assistant and designated the Chair of the Commission [Chair] to act in his stead. The Chair adopted the findings of the hearing officer and imposed the recommended penalty of termination of Assistant's employment.

Subsequently Assistant initiated a CPLR Article 78 proceeding seeking to annul the Chair's determination, contending that Chair "was not a duly qualified individual to whom [Director] could properly delegate the power to review the hearing officer's recommendations and make a final determination." Supreme Court found the delegation of the authority to make the challenged decisions  from Director to Chair to be proper, granted the City of White Plain's motion to dismiss Assistant's petition and dismissed the proceeding. Assistant appealed.

The Appellate Division commenced its review of Assistant's appeal by observing that "Civil Service Law §75(2) provides that where, as here, an officer having the power to remove an employee who is the subject of disciplinary proceedings designates someone else to conduct a hearing, the matter shall be referred back to that officer or body for review and decision."

However, said the Appellate Division, although as a general rule the authority to make the final determination as to the charged employee's status may not be delegated, "courts have recognized that the statutory command must yield to an employee's right to a fair and impartial hearing when such an official is personally involved in the proceedings by preferring the charges at issue and testifying at the hearing, or otherwise involving himself or herself extensively in the proceedings."

In the words of the court, "In such circumstances, such an official acts improperly when he or she also renders the final determination." Citing Matter of McComb v Reasoner, 29 AD3d 795, the Appellate Division noted that the Court of Appeals has interpreted Civil Service Law §72(2)  to "require[ ] that the power to discipline be delegated, if necessary, within the governmental department's chain of command" and that the Court of Appeals has further interpreted Civil Service Law §72(2) to:

1. require that the power to discipline be delegated, if necessary, within the governmental department's chain of command (see Matter of Gomez v Stout, 13 NY3d 182); and

2. whether a particular delegation will fall within the affected department's chain of command, and, hence, is permissible appears to turn upon whether the body or official to whom review power is delegated possesses either supervisory authority over the employee at issue or administrative responsibility over the affected department and its personnel" (see Matter of Zlotnick v City of Saratoga Springs, 122 AD3d 1210).

Giving Assistant "the benefit of every favorable inference," the Appellate Division concluded that Supreme Court's determination that the Chair's position with the Commission was within the affected department's chain of command and, thus, the delegation of authority from Director to the Chair was proper.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05474.htm

Making false statements concerning the employee's performance of his or her duties

Making false statements concerning the employee's performance of his or her duties

NYC Office of Administrative Trials and Hearings, OATH Index No. 1147/18

NYC Office of Administrative Trials and Hearings, OATH Index No. 1244/18

In OATH No. 1147/18 a New York City Emergency Medical Technician was served with disciplinary charges alleging that he had failed to prepare a patient care report after observing an injured individual and with making false statements about the incident.

The EMT contended that he was not required to write a report because the person refused treatment and did not show signs of injury.

OATH Administrative Law Judge Astrid B. Gloade found that the patient’s injuries were visible and that the EMT’s statement to the contrary was false.

Judge Gloade also found that the EMT's failure to complete a patient care report and document that the patient's refusal of medical treatment violated the Department’s rules.

The ALJ recommended that the EMT be suspended without pay for 40 days, which recommendation was adopted by the Appointing Authority.

In the second case, OATH Index No. 1244/18, New York City Office of Administrative Trials and Hearings Administrative Law Judge KEVIN F. CASEY found a New York City correction officer guilty of charges that he used excessive force and sexually assaulted an inmate, submitted a false report and lied to investigators about his conduct.

The correction officer contended that he was not guilty of the charges and argued that the alleged victim lied to pursue a civil suit.

Judge Casey credited the complainant's claim that correction officer repeatedly kicked him in the ankles, groped him, and used sexually suggestive and demeaning language towards him.

The ALJ found that correction officer falsely denied that he used force in his report and investigatory interview in an effort to conceal his misconduct and recommended imposing a penalty of a 60-day’ suspension without pay, with credit for time served.

The Appointing Authority adopted Judge Casey’s findings of fact, but she imposed the penalty of termination of employment.

The decision involving the EMT is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1147.pdf

The decision involving the correction officer is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1244.pdf

Determining an employee's health insurance benefits upon his or her retirement

Determining an employee's health insurance benefits upon his or her retirement

Ames v County of Monroe, 2018 NY Slip Op 04886, Appellate Division, Fourth Department

In this decision the Appellate Division held that "although the collective bargaining agreements in effect at the time of an employee's' retirement are binding and enforceable agreements that dictate the retired employee's rights, the relevant collective bargaining agreements in this action did not require the County of Monroe [Monroe] to maintain for each Plaintiff fully-paid health insurance coverage equivalent to that in effect at the time such Plaintiff retired."

Plaintiffs had complained the Monroe failed to "to maintain fully-paid health insurance coverage equivalent to that in effect at the time each Plaintiff-retiree retired" and that the Monroehas breached those CBAs by failing to do so. 

Citing Greenfield v Philles Records, 98 NY2d 562, the Appellate Division disagreed, explaining that "It is well settled that "a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms," and whether a contract is ambiguous is a question of law. Significantly, said the court, extrinsic evidence may not be considered unless the document itself is ambiguous.

The various CBAs at issue provide "retirees" with certain health insurance benefits, but did not define the term "retirees." Plaintiffs interpret the term "retirees" to mean all retirees, even those who are eligible for or enrolled in Medicare. That interpretation is supported by other provisions of the CBAs, such as one that provides such benefits to spouses of deceased retirees "for the lifetime of the surviving spouse or until remarriage" (emphasis added in the decision). 

Monroecontended that the CBAs do not provide for health insurance for those Plaintiffs  eligible for or enrolled in Medicare because of the realities of Medicare, the CBAs' prohibition of duplicate coverage, and the fact that the specific insurance plans in effect at the time of the individual Plaintiffs' retirement were not available to individuals who were eligible for Medicare.

Indicating that the CBAs were ambiguous with respect to whether retirees who are eligible for, or enrolled in, Medicare are entitled to fully-paid health insurance coverage that is equivalent to the insurance coverage in effect at the time they retired, the court turned to "extrinsic evidence to determine the parties' intent with respect to the health insurance coverage to be provided to those retirees who are eligible for or enrolled in Medicare."

Where, as here, it is determined by a court that "a contract is ambiguous, its interpretation remains the exclusive function of the court unless determination of the intent of the parties depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence."

Noting that "for decades" Monroe's retirees who were not yet eligible for Medicare were provided with health insurance benefit. In contrast, its retirees enrolled in Medicare were only provided with Medicare supplement plans. No objection was made to this arrangement and, until recently, the union representing Plaintiffs never sought to negotiate any additional benefits for retirees eligible for or enrolled in Medicare.*

 

Considering the conduct of the parties "after the contract is formed" the Appellate Division concluded that Monroe had established as a matter of law that it and the union formerly representing Plaintiffs** did not intend that the County be required to maintain fully-paid health insurance coverage equivalent to that in effect at the time of retirement for those Plaintiffs who were eligible for or enrolled in Medicare."

* Presumably such negotiations for additional benefits upon retirement must be effective before, and are only applicable to, employees before their retirement. In Burnham and UFT, 28 PERB 4590, PERB ruled that the union's "duty of fair representation" runs only to employees; there is no such duty with respect to former unit members such as retirees [See, also,  McDonald PBA v City of Geneva, 92 N.Y.2d 326; Kolbe v Tibbetts, 22 NY3d 344].

** Retirees are not employees for the purposes of collective bargaining for the purposes of Article 14 of the Civil Service Law [the Taylor Law] 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04886.htm

Qualification for office

Qualification for office

Reeves v County of Onondaga, 89 N.Y.2d 901

The New York State Court of Appeals ruled that if an individual is qualified to be appointed to the board of directors of the Central New York Regional Market Authority at the time of appointment, he or she may continue in that position even if he or she does not meet the qualifications at a later date.

§827 of the Public Authorities Law mandates that two members of the three-person board "must be persons engaged in farming who derive a greater part of their income therefrom and who actually sell all or part of their produce on the [Central New York Regional] Market." Timothy D. Reeves sued the Onondaga County Legislature contending that a "farmer-producer" member of the Authority had retired from farming and therefore could no longer serve in that capacity.

The Court of Appeals disagreed, noting that if the farmer-producer members of the Authority were qualified persons at the time of appointment, nothing in §827 required the individual to be terminated "upon a change in his [or her] status as a farmer-producer."

The Doctrine of Unintended Consequences?

The Doctrine of Unintended Consequences?

Source: Albany Time Union

In its decision in Janus v American Federation of State, County, and Municipal Employees, Council 31, et al, 85 U. S. ____ (2018), the United States Supreme Court ruled that employees of a state or a political subdivision of a state may not be required to pay an agency-shop fee to a union unless the employee affirmatively consents to pay such a fee.

In what may be an illustration of the Doctrine of Unintended Consequences, on July 27, 2018, Albany Times Union reporter Rick Karlin states that New York State United Teachers President Andy Pallotta said that in the first two weeks after the Janus decision just nine members left the union, but about 1,200 people who were agency-fee members joined up.

A broad arbitration clause may trump an "exclusion from arbitration" set out in the collective bargaining agreement's grievance procedure

A broad arbitration clause may trump an "exclusion from arbitration" set out in the collective bargaining agreement's grievance procedure

Onondaga Community Coll. (Professional Adm'rs of Onondaga Community Coll. Fedn. of Teachers & Adm'rs), 2018 NY Slip Op 04878, Appellate Division, Fourth Department

Although Supreme Court granted the Onondaga Community College's [OCC] petition seeking to stay arbitration, the Appellate Division unanimously reversed the lower court's order and granted the Onondaga Community College Federation of Teachers and Administrator's [Federation] cross-motion seeking to compel arbitration.

The Federation had filed a grievance on behalf of one of its members after OCC served the member with a letter notifying her that her position was being retrenched, i.e., eliminated. In its grievance and subsequent demand for arbitration the Federation alleged that OCC had "violated, misinterpreted, and/or inequitably applied the parties' collective bargaining agreement (CBA). Among the Federation's claims was that OCC had violated the CBA provision providing that dismissal of an employee having a continuing appointment "shall be for just cause" and was subject to "the grievance procedure of the CBA" as OCC deprived the member of work and benefits without just cause by constructively discharging her in under the guise of a retrenchment.

Concluding that Supreme Court should have denied OCC's petition staying arbitration, the Appellate Division explained:

1. It is well settled that, in deciding an application to stay or compel arbitration under CPLR 7503, the court is concerned only with the threshold determination of arbitrability, and not with the merits of the underlying claim.

2. There is a two-step test to determine "whether a grievance is arbitrable" whereby  [a] the court first determines whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance and [b] if there is no such prohibition, the is to determine whether the CBA demonstrates that the parties agreed to refer this type of dispute to arbitration.

As OCC conceded that arbitration of the grievance is not prohibited pursuant to the first step of the test, the Appellate Division said that "[t]he sole question presented on this appeal is whether the parties have agreed to arbitrate the dispute at issue" consistent with the second step of the test.

A court's review under the second step, said the Appellate Division, "is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom."

Here the Federation alleged that OCC "violated, misinterpreted, and/or inequitably applied the CBA in dismissing the member without just cause" by constructively dismissing the individual under the guise of a retrenchment.

In the words of the Appellate Division, "[i]nasmuch as [Federation] alleged that the ostensible retrenchment of the member's position was actually a dismissal without just cause, we agree with [Federation] that the court erred in concluding that [Federation had challenged OCC's] decision to retrench."

Although, said the Appellate Division, the CBA specifies several exclusions from the definition of a "grievance" that are therefore not subject to arbitration, including a decision by OCC to retrench a position, all other grievances remain subject to arbitration, in this instance the arbitration clause at issue here is broad, and there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the parties' [CBA]. Accordingly, the Appellate Division ruled the matter arbitrable, and "the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them."

In other words, the grievance at issue concerns whether the member was improperly dismissed without just cause under the guise of retrenchment, and there is a reasonable relationship between the subject matter of the grievance and the general subject matter of the CBA. Accordingly, "it is for the arbitrator to determine whether the subject matter of the dispute falls within the scope of the arbitration provisions of the [CBA]."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04878.htm