The employer's annual reviewing and approving requests for the assignment an agency vehicle to an employee does not create a past practice

The employer's annual reviewing and approving requests for the assignment an agency vehicle to an employee does not create a past practice

Spence v New York State Dept. of Transp., 2018 NY Slip Op 08594, Appellate Division, Third Department

Certain employees serving with Department of Transportation [DOT] were assigned state-owned vehicles for work and, in some instances, several employees seeking to use the vehicle for commuting as well as for work was authorized.

Wayne Spence, as President of the New York State Public Employees Federation [Petitioner] filed an improper practice charge with Public Employment Relations Board [PERB] alleging that DOT violated the Taylor Law when it unilaterally discontinued providing state-owned vehicles to some of the employees that had submitted a request seeking be assigned a DOT vehicle . After a hearing, an Administrative Law Judge found that DOT's action constituted a violation of the Taylor Law.

DOT appealed and PERB reversed the Administrative Law Judge's decision. PERB, concluding that because DOT retained the discretion to annually review whether employees should be assigned a state-owned vehicle, such employees could not have a reasonable expectation that they would always be provided one.

Petitioner next files an Article 78 petition with Supreme Court seeking a court order annulling PERB's determination. Ultimately the matter was transferred to the Appellate Division.

The Appellate Division found that:

1. The Taylor Law requires all public employers and employee organizations to negotiate in good faith to determine the terms and conditions of employment of employees in the negotiating unit.

2. Where PERB's determination is made after an administrative hearing, such determination must be supported by substantial evidence.

The court found that the record revealed that DOT's assignment of state-owned vehicles to DOT employees was governed by various criteria set out in a manual that had to be met in order for a state-owned vehicle to be assigned. In addition, the manual required the employee seeking to be assigned a state-owned vehicle to submit a "Form EM-30" and justify his or her need for the state-owned vehicle and its use annually.

PERB concluded that "a past practice of assigning state-owned vehicles with commuting privileges did not exist." In this regard, PERB found that the employees had to annually request such vehicle pursuant to a DOT policy and that DOT retained the discretion to approve or deny such request and, therefore, the employees could not reasonably expect to be assigned a vehicle.

The Appellate Division found that PERB's determination was supported by substantial evidence in the record and although the vehicle requests were routinely approved, that fact did not create a past practice nor divest DOT of its right to exercise its discretion in granting or denying the requests or the use of the vehicle for commuting to and from work.

Citing State of New York Dept. of Correctional Servs. v Kinsella, 220 AD2d 19, the court held that "because PERB's determination is supported by substantial evidence, it will not be disturbed notwithstanding the fact that the record contains evidence that would support a contrary result."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08594.htm

Certain personnel records are exempt from disclosure pursuant to Public Officers Law §87(2)(a) and Civil Rights Law §50-a even in a redacted form

Certain personnel records are exempt from disclosure pursuant to Public Officers Law §87(2)(a) and Civil Rights Law §50-a even in a redacted form

New York Civ. Liberties Union v New York City Police Dept., 2018 NY Slip Op 08423, Court of Appeals

New York State's Civil Rights Law §50-a requires that police officer personnel records be kept confidential and sets out a procedure to obtain a court order of disclosure of such records. The New York Civil Liberties Union [NYCLU] sought the disclosure of protected personnel records and documents generated in connection with New York City Police Department [NYPD] disciplinary proceedings that arose out of allegations referred to the NYPD by the New York City Civilian Complaint Review Board [CCRB] NYPD  pursuant to a Freedom of Information Law [FOIL]* request, contending that compliance with Civil Rights Law §50-a is unnecessary where an officer's identifying information is adequately redacted.

The Court of Appeal disagreed, holding that the personnel records requested by NYCLU are exempt from disclosure pursuant to Public Officers Law §87(2)(a) and Civil Rights Law §50-a even in a redacted format.

The CCRB is an independent City agency empowered to receive and investigate allegations of police misconduct involving NYPD officers. If the CCRB "substantiates" a complaint against an officer, it may refer the case to the NYPD for formal disciplinary action. If the NYPD decides to prosecute subject officer, the officer is served with written "Charges and Specifications" setting out the alleged misconduct. Disciplinary proceedings are then by NYPD's internal adjudicatory forum, which hearings are open to the public.

NYCLU submitted a FOIL request to the NYPD seeking (1) "[c]opies of all final opinions, dated from January 1, 2001 to present adjudicating charges and specifications arising out of cases in which the CCRB has substantiated charges against a member of the department," and (2) "[c]opies of documents identifying the formal and final discipline imposed in conjunction with each decision."

The NYPD denied the request, reasoning that the requested records were exempt from disclosure under several FOIL exemptions, including Public Officers Law §87(2)(a), which provides an exception for records that are "specifically exempted from disclosure by state or federal statute." NYPD, among other things, asserted that the records were protected by Civil Rights Law §50-a since they "are used to evaluate the continued employment of police officers by the NYPD."

In response to NYCLU's administrative appeal NYPD granted NYCLU's of the denial of its FOIL request, its appeal was in part and NYPD provided it with more than 700 pages of Disposition of Charges forms with redactions intended to conceal the identifying information of the subject officers and complainants. With respect to the NYCLU's request for "final opinions" -- the approved Report and Recommendation documents -- NYPD denied the appeal, again concluding that the documents were exempt from disclosure pursuant to Public Officers Law §87(2)(a) and Civil Rights Law §50-a, among other FOIL exemptions, noting that Civil Rights Law §50-a "defines a process which is the exclusive means for obtaining records that fall within its purview" and requires, among other things, "giving notice to the police officer who is the subject of the records, and obtaining a court order directing disclosure pursuant to the process defined in [Civil Rights Law] §50-a(2)."

NYCLU next filed a CPLR Article 78 petition seeking a court order requiring the disclosure of the disciplinary records withheld NYPD. Supreme Court denied the NYPD's subsequent motion to dismiss and directed the NYPD to "select five decisions at random, and redact them to remove anything to identify the subject of the complaint." Supreme Court further ordered the NYPD to notify the subject officers of the proceeding and the proposed redactions. NYPD complied by submitted the redacted documents to Supreme Court for in camera review. NYPD also filed an answer to the NYCLU's petition, contending that disclosure of the documents, even in redacted form, was prohibited by Civil Rights Law §50-a because the redactions could not adequately conceal the officers' identities. The five subject officers similarly objected to the disclosure of the redacted documents.

Supreme Court "deem[ed] the redactions adequate" and ordered that "[a]ll future requests are to be done as were the five in camera submissions. NYPD appealed.

The Appellate Division, citing Short v Board of Mgrs. of Nassau County Med. Ctr., 57 NY2d 399, and Karlin v McMahon, 96 NY2d 842, unanimously reversed the lower court's ruling explaining these two decisions provided "controlling precedent" and thus it could not "order [NYPD] to disclose redacted versions of the disciplinary decisions.

The Court of Appeals said that the disciplinary decisions requested by the NYCLU are quintessential "personnel records" protected by Civil Rights Law §50-a, a statute designed to protect police officers from the use of their records "as a means for harassment and reprisals and for purposes of cross-examination by plaintiff's counsel during litigation." Further, said the court, the protection afforded by Civil Rights Law §50-a is not limited to the context of actual or potential litigation as the "legislative objective" of section 50-a extends "beyond precluding disclosure on behalf of defendants in pending litigation"; it seeks to prevent any "abusive exploitation of personally damaging information contained in officers' personnel records."

The Court of Appeals explained that the documents at issue here are " the very sort of record'" presenting a potential for abusive exploitation and intended to be kept confidential under Civil Rights Law §50-a. Noting that NYCLU's FOIL request seeks internal police department disciplinary records, spanning a 10-year period, that arise from civilian complaints against NYPD officers described the records sought as being "replete with factual details regarding misconduct allegations, hearing judges' impressions and findings, and any punishment imposed on officers," opining that such material was ripe for "degrad[ing], embarrass[ing], harass[ing] or impeach[ing] the integrity of [an] officer", concluding that the documents are, accordingly, "protected from disclosure under Civil Rights Law §50-a."

The court then observed that:

1.  "There can be no question" that Civil Rights Law §50-a permits court-ordered disclosure but "only in the context of an ongoing litigation; and

2. Absent officer consent, protected personnel records are shielded from disclosure "except when a legitimate need for them has been demonstrated to obtain a court order" based on a "showing that they are actually relevant to an issue in a pending proceeding."

In this instance, said the court, and in the context of the NYCLU's FOIL request, the requested records are not "relevant and material" to any pending litigation (Civil Rights Law § 50-a [3]), and accordingly, they are not disclosable.

The court of Appeals also noted that the FOIL exemption at issue, Public Officers Law §87(2)(a), applies not only to §50-a personnel records, but to all records covered by the various "state or federal statutes" that serve to protect the confidentiality of countless categories of individuals, including, but not limited to, sex offense victims; medical patients; and prospective jurors.

Noting that "nothing in FOIL" prohibits an agency from "disclos[ing] exempt records at [its] discretion," there are distinct and mandatory New York statutory provisions expressly operating to guarantee confidentiality notwithstanding FOIL's permissive disclosure regime.

Opinion by Judge Garcia. Chief Judge DiFiore and Judges Fahey and Feinman concur. Judge Stein concurs in result in an opinion. Judge Rivera dissents in an opinion. Judge Wilson dissents in a separate dissenting opinion.

* The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute, are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL. In other words, there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.  The release of some public records, however, may be limited by statute such as Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records.  

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08423.htm

A three-part test is applied by the court to determine if a party to a collective bargaining agreement's demand for arbitration is viable

A three-part test is applied by the court to determine if a party to a collective bargaining agreement's demand for arbitration is viable

City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2018 NY Slip Op 08294, Appellate Division, Second Department

The collective bargaining agreement [CBA] between Local 328 and the City of Yonkers provides a three-step grievance procedure to resolve a dispute involving the interpretation or application of any provision of the CBA. In the event the grievance is not administratively resolved at any of the three step of the grievance procedure, the City or Local 328, as the case may be, may elect to submit the dispute to arbitration.

When the City issued a General Order, General Order No. 4-15, changing certain dispatch response protocols for Emergency Medical Service [EMS] personnel to include new or additional incidents, Local 628 filed a grievance asserting, among other things, that the new protocols had not negotiated with it. After exhausting its internal grievance remedies, Local 628 filed a timely demanded for arbitration of the dispute.

In response to Local 628's demand for arbitration, the City had initiated this Article 75 proceeding in Supreme Court seeking an order permanently staying arbitration, contending that the dispute was not arbitrable. Supreme Court agreed with the City argument and, in effect, granted the City's petition to permanently stay arbitration.

Local 628 appealed the Supreme Court's ruling and the Appellate Division reversed the Supreme Court's determination "on the law."

The Appellate Division, citing Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc., Long Beach Unit, 8 NY3d 465, explained that "[p]ublic policy in New York favors arbitral resolution of public sector labor disputes." A dispute between a public sector employer and an employee, however, is only arbitrable if it satisfies a two-prong test.

Initially the court must determine that there is no statutory, constitutional, or public policy prohibition against arbitrating the grievance. If the demand for arbitration survives this judicial test, the court must then "examine the parties' collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute." Further, when deciding whether a dispute is arbitrable the court may not consider the merits of the dispute as the arbitrator is charged with weighing the merits of the claim.

Noting that it was undisputed that there is no statutory, constitutional, or public policy prohibition to arbitration of Local 628's grievance, the Appellate Division said that the only issue to be resolved is whether the parties, in fact, agreed to arbitrate the dispute.

Citing Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, the Appellate Division explained that "Where, as here, the relevant arbitration provision of the CBA is broad, if the matter in dispute bears a reasonable relationship to some general subject matter of the CBA, it will be for the arbitrator and not the courts to decide whether the disputed matter falls within the CBA."

Local 628's grievance alleged that the City violated Article 33.1 of the CBA, which mandated that the EMS program be kept at the highest level of professional standards based upon the standards in place at the time of the agreement. Local 628 contended that General Order 4-15 increased the call protocols and subjected its members to calls for which they are not trained and lack necessary equipment. Accordingly, said the Appellate Division, the grievance is reasonably related to at least one provision in the CBA, and the Supreme Court should have denied the petition to permanently stay arbitration.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08294.htm

Selected Links to featured Employment Law News items from WK Workday

Selected Links to featured Employment Law News items from WK Workday

Posted December 16, 2018

Click on text highlighted in color to access the full report

Average hourly wage across a workweek is relevant unit for determining FLSA minimum wage violation

Premature to find NLRA preempted NYC car wash law before discovery on law’s interference with collective bargaining

San Francisco can’t sue DOJ over rescission of disability, national origin discrimination guidance

NLRB again extends comment period on joint-employer proposal, now to January 14

USCCR pushes for protections against discrimination based on sexual orientation, gender identity

Son had standing to bring retaliation claim based on father’s discrimination complaints against previous employer, but couldn’t show prospective employer knew of complaint

NLRB: Special remedies essential to ensure that employees may freely exercise Section 7 rights

Employee advances OT claims even though facial recognition system reflected 40 hours weekly

Employee fired after refusing to establish MMR immunity or get vaccine can’t revive ADA claims

An administrative determination made after a hearing will be sustained by the court if the decision is supported by substantial evidence

An administrative determination made after a hearing will be sustained by the court if the decision is supported by substantial evidence

DeStefano v Incorporated Vil. of Mineola, 2018 NY Slip Op 08481, Appellate Division, Second Department

Michael A. DeStefano, a member of the Volunteer Fire Department of the Incorporated Village of Mineola, was served with disciplinary charges alleging that he had violated certain provisions of the Fire Department's constitution and by-laws. Found guilty of the charges by the Fire Department's Fire Council [Fire Council], DeStefano membership in Fire Department was terminated.

DeStefano asked the Board of Trustees of the Incorporated Village of Mineola [Board] to review the Fire Council's determination. The Board of Trustees appointed a hearing officer, who conducted a hearing. Following the hearing, the hearing officer recommended that the Fire Council's findings of misconduct and the penalty of termination of DeStefano's membership in the Fire Department be sustained. The Board adopted the recommendation of the hearing officer.

DeStefano appealed the Board's decision by commencing a proceeding pursuant to CPLR Article 78 contending that the Board's determination "was made in violation of lawful procedure and was not supported by substantial evidence."* Supreme Court denied DeStefano's petition and dismissed the proceeding. DeStefano appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division, noting that as a matter of procedure Supreme Court should have transferred the proceeding to the Appellate Division but as the complete record "is now before this Court," held that it would treat the matter as one that has been transferred here and will review the determination de novo."

The court explained that with respect to judicial review of a determination rendered by an administrative body following a hearing, the Appellate Division's function "is limited to consideration of whether the determination is supported by substantial evidence." In this instance, said the Appellate Division, the Board's determination that DeStefano violated certain provisions of the Fire Department's constitution and its by-laws was supported by substantial evidence. Further, said the court, "... contrary to [DeStefano's] contention, certain members of the Fire Council were not required to disqualify themselves from acting on the disciplinary charges filed against him."

With respect to the penalty imposed, termination from the Fire Department, the Appellate Division noted that a court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." 

The Appellate Division said that it found that the penalty of dismissal imposed on DeStefano was "not so disproportionate to the offenses as to be shocking to one's sense of fairness," citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

The court then confirmed the Board's decision and dismissed DeStefano's appeal "on the merits."

* Substantial evidence it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt and "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact [300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176].

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2018/2018_08481.htm

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

Sears v DiNapoli, 2018 NY Slip Op 08610, Appellate Division, Third Department

§803.a of the Retirement and Social Security Law [RSSL] addresses processing applications for retroactive membership in a public retirement system of New York State and provides, in pertinent part, that "A public retirement system shall have the authority to grant relief from a failure to file an application for membership in that system in connection with service rendered prior to April first, nineteen hundred ninety-three in accordance with the provisions of this [§803]."

Patricia Sears, a permanent employee of the Department of Taxation and Finance [T&F] from November 1977 until her retirement in July 2015 was enrolled in ERS as a Tier 3 member.  Prior thereto her permanent appointment in 1977, Sears had been employed by T&F as a seasonal employment on two occasions, initially from March 4, 1976 to June 30, 1976 and then again from January 6, 1977 until September 16, 1977. Prior to the commencement of her second temporary period of employment with T&F Sears signed a waiver dated December 28, 1976 acknowledging her right to join the Retirement System and elected not to do so.*

After RSSL §803 was enacted in 1993, Sears sought, but was denied, retroactive Tier 2 membership in ERS. Shortly before Sears retired in July 2015, she again sought to have her ERS membership in Tier 3 changed to a Tier 2 membership. Although ERS again denied Sears' request for Tier 2 membership, Sears challenged the decision via an administrative hearing and the Hearing Officer recommended Sears' application for retroactive Tier 2 membership be granted. The Comptroller rejected the Hearing Officer's recommendation and Sears filed an Article 78 petition challenging the Comptroller's determination.

The Appellate Division said the ERS conceded, and its review of the record confirms, that the underlying determination denying Sears' application to Tier 2 membership in ERS was not supported by substantial evidence. In words of the court, "As the Hearing Officer aptly observed, the waiver signed by [Sears] in December 1976 cannot be applied retroactively to encompass [Sears'] initial period of seasonal employment from March 1976 to June 1976, and Sears testified without contradiction that she was neither offered an opportunity to join nor declined membership in the Retirement System at that time."

The court explained that there was no information in Sears' personnel file regarding her membership options or opportunities when she was first hired in 1976, nor were there any current employees who could attest to the membership notification procedures that were in place when Sears was initially employed by T&F. Further, said the court, the documentary proof offered at the hearing was insufficient to establish, among other things, that Sears participated in a procedure that a reasonable person would recognize as an opportunity to join or decline membership in the Retirement System.

Accordingly, the Appellate Division annulled the Comptroller's determination, granted Sears application for retroactive Tier 2 status in ERS and remitted the matter to ERS "further proceedings not inconsistent with this Court's decision."

In contrast, see Schuyler v New York State & Local Employees' Retirement System at http://www.nycourts.gov/reporter/3dseries/2018/2018_00874.htm where the Appellate Division ruled that a "lack of documentation, coupled with information suggesting that petitioner's services were performed as an independent contractor rather than a state employee, supports the Comptroller's denial of petitioner's request for additional service credit."

* Frequently employees, other than employees in the Labor Class, eligible for membership in ERS but not required to become a member, declined becoming a member in order to avoid being required to make employee contributions to ERS and participating in Social Security. Employees in the Labor Class were required to participate in Social Security regardless of their membership in ERS.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08610.htm

Laws of 2018 of interest to public employers and public employees in New York State

Laws of 2018 of particular relevance to public employers and public employees in New York State

Perhaps 2018's must significant legislative action was the amendment of Section 209-a.2 of the Civil Service Law by §4 of Part RRR of Chapter 59 of the Laws of 2018. This amendment set out New York State's response to the United States Supreme Court's decision in Janus v American Federation of State, County, and Municipal Employees, Council 31, et al, 138 SCt 2448.

In Janus the high court held that states and public-sector unions may no longer require "nonconsenting employees" in a collective bargaining unit to pay an "agency shop" fee in lieu of joining the certified or recognized employee organization representing employees in a negotiating unit for the purposes of collective bargaining.

§209-a.2 of the Civil Service Law now provides that it is not a violation of an employee organization's duty of fair representation if the employee organization limits its services to, and representation of, nonmembers by declining to provide representation to the nonmember in the relevant negotiating unit at any stage of a grievance, arbitration or other contractual process concerning the evaluation or discipline of a public employee where the non-member is permitted to [i] proceed without the employee organization and [ii] be represented by his or her own advocate; during questioning by the employer; or as an advocate to enforce statutory or regulatory rights alleged by the nonmember or in administrative or judicial proceedings where the nonmember is a party.

Other bills signed in to law by the Governor during 2018 include the following:

CHAPTER	Bill No.	Title
16	S7289	CROCI -- Relates to authorizing additional paid leave for certain employees
47	S7431	MURPHY -- Provides that each state agency that maintains a website shall ensure its website provides for online submission of requests for records subject to FOIL
49	A8929	Rozic -- Relates to requiring the president of the civil service commission to prepare a triennial report relating to programs within state agencies that allow for alternative work   schedules or flexible work hours
67	A9728	Lentol -- Relates to tuition waivers for police officer students of CUNY
71	S7440A	GOLDEN -- Relates to terms and conditions of employment of certain nonjudicial officers and employees of the unified court system
72	S7715	BONACIC -- Relates to the terms and conditions of certain nonjudiciary officers and employees in the unified court system
76	A10606	Abbate -- Relates to compensation, benefits and other terms and conditions of employment of certain state officers and employees;appropriation; repealer
207	A208E	Lupardo -- Provides for pre-employment and random drug and alcohol testing of school bus drivers
214	A2954B	McDonald -- Authorizes educational institutions to agree to pay for all or a portion of the salaries and compensation payable to municipal school crossing guards
220	A7070A	Abbate -- Relates to residency requirements for members of municipal departments of sanitation
231	A8177	Skartados -- Relates to justices presiding in an off-hours arraignment part
233	A8382B	Galef -- Requires immediate notification by law enforcement of the filing of an accusatory instrument alleging a sex offense by an employee
248	A10327A	Gunther -- Relates to the cost of insurance to provide firefighters with an enhanced cancer disability benefit insurance program
262	A11128	Rules (Jones) -- Includes persons appointed as Indian police officers within the definition of the term "law enforcement agency" for the purposes of the law enforcement accreditation council
263	A11227	Rules (Abbate) -- Relates to implementing an agreement between the state and an employee organization; appropriation
271	S8973	GOLDEN -- Relates to disciplinary action against persons employed in the labor class
308	A3076	Cymbrowitz (MS) -- Relates to the qualifications of members of the gaming commission
330	A11020	Rules (Epstein) -- Relates to authorized absences by healthcare professionals who volunteer to fight the Ebola virus overseas; extends effectiveness
331	S2496B	HANNON -- Enacts the "living donor protection act of 2018"
355	S8805	RULES -- Relates to salary adjustments according to plan and step-ups or increments
356	S1124B	MARCHIONE -- Provides for an increase in the rates of compensation for gold star parents
368	A10615	Titus -- Relates to permitted deductions from wages; extends the effectiveness of such provisions
387	S8251	ROBACH -- Relates to warranties of fire vehicles and ambulances
403	A2549	Lifton (MS) -- Directs the president of the civil service commission to study and publish a report evaluating wage disparities among public employers