Distinguishing between a "mandatory referendum" and an "advisory referendum" when seeking voter approval of a proposed local law

The Council of the City of Rochester (Council) adopted Local Law No. 4 of 2019  [Local Law] to amend the City Charter. The Local Law provided the holding of a referendum for the November 2019 general election that, if adopted, would:

1. Remove the Board of Education of the Rochester City School District [Board] Commissioners from a list of "Elective officers";

2. Remove the members of the Boards' term of office from City Charter; and

3. Discontinue providing for the "Salaries of School Board members."

The referendum further provided that the Local Law would take effect only after both approval by [a] an affirmative vote of "a majority of qualified electors" voting on the referendum and [b] the enactment of appropriate enabling amendments to the Education Law.

The Board initiated a CPLR Article 78 proceeding and declaratory judgment action seeking a declaration that the Local Law was invalid and that the referendum would be void as constituting an "advisory referendum." The Board also asked the court to issue a permanent injunction barring the City from placing the referendum on the November ballot.

Supreme Court granted the relief sought by the Board, holding that the State "unequivocally occupies the entire field of public education, thus preempting the Local Law and rendering the referendum impermissibly advisory." Declaring that the Local Law was a "void advisory referendum," the court issued a permanent injunction barring the advisory referendum from being included on the ballot for the November general election.

The City appealed the Supreme Court's ruling but the Appellate Division affirmed the lower court's decision. Citing Mills v Sweeney, 219 NY 213, decided in 1916, the Appellate Division explained that any local law that "[a]bolishes an elective office" or "reduces the salary of an elective officer during his [or her] term of office" is subject to the approval of a mandatory referendum.*

In contrast, said the court, an "advisory referendum," that is a referendum that lacks legal effect or consequence, is not permitted in the absence of express constitutional or statutory authority providing for such a referendum.

As the Local Law conditioned its effectiveness on subsequent action by the New York State Legislature, the Appellate Division said that this stipulation "strips the referendum of any binding legal effect" and thus is "impermissibly advisory."

In addition, the Appellate Division observed that Supreme Court "correctly noted" that a local government may not legislate in areas "where the State has evidenced its intent to occupy the field" and it is well established that the State has preempted local action in the field of public education.** 

The Appellate Division then unanimously affirmed the Supreme Court's judgment, without costs.

* See Municipal Home Rule Law §23[2][e].

** See New York State Constitution Articles IX §3[a][1] and Article XI, §1; Education Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06449.htm

Recent Decisions issued by Administrative Law Judges of the New York City Office of Administrative Trials and Hearings

Below are summaries of recent OATH Administrative Law Judge's decisions.  To ascertain whether the ALJs' recommendations were adopted by the appointing authority please call OATH's calendar unit at 1-844-628-4692.

Worker alleged to be under the influence of drugs while on duty

OATH Index No. 1530/19

A worker, who was found unconscious at work, was charged with possessing and being under the influence of drugs while on duty and being absent without leave. Administrative Law Judge Ingrid M. Addison sustained the charges that the employee was under the influence of drugs while on duty but dismissed the absence charge.

Termination of the worker’s employment was recommended by the appointing authority, but because the employee’s problems appeared to have started following a line of duty injury, Judge Addison suggested that the appointing authority consider placing the individual on a leave of absence to allow him to return when fully rehabilitated.

The appointing authority adopted Judge Addison's findings and recommendation.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1530.pdf

Special officer alleged to have used excessive force against a client

OATH Index No. 2742/18

A special officer [SO] was charged with using excessive force against a client at a New York City job center. The charges filed against the officer alleged that he kicked the client hard in the face and pulled the client’s arm when the client was already held in a prone position on the floor by several other officers. SO denied the charges filed against him.

In the course of a four-day trial, the appointing authority offered seven witnesses and SO offered three. ALJ Noel R. Garcia credited the appointing authority’s witnesses, found that SO guilty of serious misconduct, and recommended termination of his employment. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-2742.pdf

Employee charge with targeting a co-worker with inappropriate, aggressive and threatening language 

OATH Index No. 1863/19

An employee was charged with twice accosting a fellow employee and addressing  inappropriate, aggressive and threatening language to the co-worker.

During trial the appointing authority presented the testimony of four employees. Testifying on her own behalf, the charged employee denied having used any inappropriate or aggressive language.

ALJ Addison found the appointing authority’s witnesses credible and sustained the charges. Considering the charged employee’s long service with the agency,  Judge Addison recommended a penalty of 40 days’ suspension without pay, "with credit for time served."

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1863.pdf

Motion seeking the recusal of the Supreme Court Justice presiding over a CPLR Article 75 action

Petitioner [Employer] commenced this proceeding in Supreme Court pursuant to CPLR Article 75 to vacate an arbitration award that concluded that Employer had improperly terminated the employment of member of the negotiating unit represented by the employee organization [Union]. 

Supreme Court granted the Employer's petition and vacated the arbitration award. The Union and the terminated employee  then asked [1] the Supreme Court Justice who had presided over this Article 75 action to recuse herself; and [2] an order to vacate the order and judgment earlier issued by her. The Justice denied the motion. 

Mandatory disqualification of a Supreme Court Justice pursuant to Judiciary Law §14 is required where the trial judge presiding over any claim is "related by consanguinity or affinity to any party to the controversy within the sixth degree."* 

The Appellate Division explained that the record did not show that any person related to the challenged Supreme Court Justice was a party to Article 75 proceeding and thus mandatory disqualification pursuant to Judiciary Law §14 was not required

Turning to the Code of Judicial Conduct Canon, 3(E)(1)(d)(i), which concerns a judge recusing himself or herself as a matter of the exercise of his or her discretion, the Appellate Division said that this provision addresses a judge decision to decline "self-disqualification" or reject a motion to do so.

As to the question of discretionary recusal, the Appellate Division again agreed with the Supreme Court Justice's denial of the motion seeking her recusal based on alleged impropriety or bias. The Appellate Division's decision notes that in the absence of a legal disqualification under Judiciary Law §14, "the determination concerning a motion seeking recusal based on alleged impropriety, bias, or prejudice is within the discretion and the personal conscience of the court." 

Such recusal, opined the Appellate Division, as a matter of due process, "is required only where there exists a direct, personal, substantial or pecuniary interest in reaching a particular conclusion, or where a clash in judicial roles is seen to exist." 

Accordingly, said the court, the denial of a recusal motion will constitute an improvident exercise of discretion only where the moving party puts forth demonstrable proof of the judge's bias or prejudgment and here there was no evidence in the record demonstrating that  the Supreme Court Justice had any improper interest in the outcome of the Article 75 proceeding or harbored actual bias against the Union or its member so as to warrant the conclusion that her denial of their recusal request was an improvident exercise of discretion.

* "First cousins twice removed" constitute the sixth degree of consanguinity.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06391.htm

[See, also, http://www.nycourts.gov/reporter/3dseries/2019/2019_06402.htm]

Suing for alleged defamation following the publication of an article concerning "official governmental activities"

New York's Civil Rights Law §74 shields publishers from civil liability for claims of defamation when the alleged defamatory statements are accurate reports about official government events and activities.*

Supreme Court denied Petitioner's motion to strike the Respondent's Civil Rights Law §74 defense** to allegations of defamation, holding that "Civil Rights Law §74 ... confers an absolute privilege on a fair and true report of any official proceeding."

Supreme Court also noted that "a newspaper article which relies upon the findings of an official proceeding [does not] lose the protection of the statute merely because its publication precedes release of the official findings. 

Indeed, observed the court, even the announcement of an investigation by a public agency, made before the formal investigation has begun, is protected as a report of an official proceeding within the contemplation of §74, as is a report of an ongoing investigation, as long as it is accurate"

In addressing Petioner's appeal challenging the Supreme Court's ruling concerning Respondent's §74 defense, the Appellate Division identified as covered by the rubric "official government activities" was an article that "hyperlinked a CNN article and the embedded dossier compiled by Christopher Steele, which included a confidential report containing the alleged defamatory statements" about Plaintiffs.

The Appellate Division, sustaining the Supreme Court's ruling, opined that the Plaintiffs "would have concluded that there were official proceedings, such as classified briefings and/or an FBI investigation concerning the dossier as a whole, including the confidential report relating to plaintiffs."

* Civil Rights Law§ 74 provides that "A civil action cannot be maintained against any person, firm or corporation for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding." The same is true with respect to "any heading of the report which is a fair and true headnote of the statement published."

** The Supreme Court's ruling is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2018/2018_30834.pdf

The Appellate Division's decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03473.htm

The tests applied by courts in New York State to determine if a grievance alleging a violation of a provision in a public sector collective bargaining agreement is arbitrable

In Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, the Court of Appeals has recognized a two-step process for a court to determine when a particular public sector grievance is subject to arbitration. The court must first determine if there is any statutory, constitutional or public policy prohibition against arbitration of the grievance at issue. If there is no such bar, the court must then examine the collective bargaining agreement to determine if the parties have agreed to arbitrate the dispute at issue.

In this CPLR Article 75 action the petitioner [Employer] sought a permanent stay of arbitration of a labor organization's [Union] demand that an adverse contract grievance decision be submitted to arbitration. Supreme Court rejected the Employer's attempt to stay arbitration of the matter and, on appeal, the Appellate Division sustained the lower court's ruling.

The Appellate Division, noting that the Employer did not claim that was a statutory, constitutional or public policy impediment to submitting the matter to arbitration, said its review of the Employer's appeal was focused on whether the parties had agreed to arbitrate the dispute at issue.

The relevant clause in the controlling collective bargaining agreement [CBA] provided that "i]n the event the grievance is not resolved after the final step in the grievance procedure [set out in the CBA], [either party] may submit [the matter] to arbitration in accordance with the procedure [set out in the CBA] within ten (10) days of the close of the Stage Three review." A grievance was defined as "any claimed violation, misinterpretation, or inequitable application of the terms and conditions" set out in the CBA.

This broad arbitration clauses, opined the Appellate Division, includes matters where a reasonable relationship between the CBA and the matter to be arbitrated exists. As the CBA includes terms and conditions of employment, including a provision that office hours for the grieving employees  involved "shall be from 8:00 a.m. to 5:00 p.m. Monday through Friday," the court found that "a reasonable relationship exists between the subject matter of the grievances and the general subject matter of the CBA, and [thus] the matter is arbitrable."

The court rejected the Employer's argument that "there is no valid agreement to arbitrate because the grievants' claims pertain to a 1995 Memorandum of Agreement (MOA) between the parties and not the CBA."

However, said the court, "the [employees being represented by the Union] have alleged a violation of the CBA and not the separate MOA" and whether there is merit to the Employer's contention that there is no violation of the CBA because the MOA remains enforceable and permits the 11:15 a.m. to 7:15 p.m. shift is an issue for the arbitrator to resolve.*

Addressing the Employer's claim that the demand for arbitration was untimely, the Appellate Division ruled that the Employer had failed to meet its "initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired."

Accordingly, the Appellate Division unanimously affirmed the Supreme Court's ruling without costs.

* In addition, the court pointed out that the CBA does not contain an express provision requiring strict compliance with the contractual grievance procedures as a condition precedent to arbitration but, instead, provides that the arbitrator will consider whether grievance "procedures have not been followed" in determining whether to deny the grievance.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06298.htm

Violating a "last chance agreement" to avoid disciplinary action

A tenured assistant principal [Plaintiff] assigned to host an award ceremony arrived at the school admittedly under the influence of alcohol. Disregarding the instructions of his principal, Plaintiff left the school in his car and was thereafter arrested for driving while intoxicated. His arrest was reported in the local media and was discussed by parents and students on social media.

In consideration of the fact that Plaintiff had been a well-regarded teacher and administrator, the school district [Respondent] elected not to initiate disciplinary proceedings but instead offered Plaintiff a "last chance agreement" requiring Plaintiff to satisfy various counseling and reporting requirements and which provided that if, in the future, Plaintiff tested "positive for alcohol on school grounds or was convicted of an alcohol-related offense, he would be terminated without a hearing under Education Law §3020-a." Plaintiff agreed to the terms set out in this "last chance agreement."*

Subsequently faculty and staff reported that Plaintiff appeared to be intoxicated at a school dance at which he was the administrator in charge. Respondent took no disciplinary action then because it was unable to verify those suspicions by administering a blood alcohol test on petitioner. Shortly thereafter Plaintiff was arrested for driving while intoxicated after he refused a breathalyzer test. 

As the last chance agreement provided for Plaintiff's immediate termination without a hearing only if he tested positive for alcohol or was convicted of an alcohol-related offense, Respondent initiated disciplinary proceedings pursuant to §3020-a of the Education Law. 

The seven charges filed against Plaintiff including allegations that he failed to comply with the last chance agreement and violated school policies by keeping empty alcohol bottles in his desk at school. After a three-day disciplinary hearing, the Hearing Officer sustained all seven charges and accepted Respondent's recommendation that Plaintiff be terminated from his position.

In response to Plaintiff's initiating this proceeding under Education Law §3020-a (5) and CPLR §7511 seeking to vacate the arbitration award, Respondent cross-moved to confirm the arbitration award. Supreme Court vacated certain charges and specifications and certain factual findings of the Hearing Officer and found the penalty to be shocking to the conscience. Respondent appealed and the Appellate Division reversed the lower court's judgment.

In vacating the arbitration award in part, the Supreme Court determined that, among other things, [1] the parties "mutually rescinded" the last chance agreement when they proceeded to arbitration, thus rendering that agreement void and [2] Respondent elected its remedy by proceeding to arbitration, thereby foregoing any prospective disciplinary action against Plaintiff under the last chance agreement. 

In addition, Supreme Court found that the Hearing Officer's recommendation of termination was shockingly disproportionate to Plaintiff's misconduct "inasmuch as that misconduct did not occur on school grounds," remitting the matter to a different hearing officer to conduct a hearing on the appropriate sanction for the charges sustained.

Respondent appealed and the Appellate Division reversed the lower court's judgment, explaining:

1. There was no evidence in the record that, by proceeding to arbitration, the parties intended to cancel or mutually rescind the last chance agreement. Rather, at the disciplinary hearing, both parties agreed that the last chance agreement remained valid and enforceable;

2. Supreme Court erred in its determination that the last chance agreement was rendered unenforceable under the election of remedies doctrine inasmuch as that doctrine has no application to the last chance agreement or to the facts of this case, opining that [i]f it was the intent of the parties to preclude [Respondent] from seeking a penalty for [Plaintiff's] failure to comply with the last chance agreement if [Respondent] 'employed the procedures set forth by [Education Law § 3020-a], it was incumbent upon them to have specifically so stated' in the agreement" and nothing in the agreement indicated that Respondent was limited to disciplining Plaintiff under the last chance agreement for future misconduct or that Respondent could not initiate a disciplinary hearing with respect to Plaintiff's violations of the last chance agreement itself;

3. Supreme Court erred in vacating the Hearing Officer's conduct findings as Education Law §3020-a (5) permits judicial review of a hearing officer's decision but expressly provides that "the court's review shall be limited to grounds set forth in" CPLR 7511 whereby "[a]n arbitration award may not be vacated unless it violates a strong public policy, is irrational, or clearly [e]ceeds a specifically enumerated limitation on the arbitrator's power." In the words of the Appellate Division, "Where, as here, the parties are "subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious ...." and "it must be in accord with due process." and "the record establishes that those findings were rational, had evidentiary support, and were not arbitrary and capricious, impermissibly based on uncharged conduct, or otherwise improper; and

4. Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, Supreme Court erred in vacating the penalty imposed by the arbitrator, commenting that "Unless an irrationality appears or the punishment shocks one's conscience, sanctions imposed by an administrative agency should be upheld." Given the seriousness of Plaintiff's offenses and his position as a role model for young adults, the Appellate Division said it could not conclude that the Hearing Officer's penalty of termination was shocking to the conscience and in vacating the penalty Supreme Court inappropriately substituted its judgment for that of the Hearing Officer.

* Taylor v Cass, 122 A.D.2d 885, illustrates impact of a settlement agreement providing for a disciplinary probation award that provided that the appointing authority could summarily terminate the employee without any hearing if, in the opinion of his superior, "his job performance was adversely affected by his intoxication on the job during the next six months.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_06297.htm

Determining service credit for the purpose of attaining tenure by educators serving as substitute employees

As this ruling by the Court of Appeals [Court] indicates, a substitute teacher may satisfy probationary service requirements using "Jarema credit"* attain tenure as §2509(1)(a) of the Education Law allows a teacher to apply service as a "regular substitute" towards completion of the probationary term required for tenure.

If a probationer substitutes for a teacher who is on leave for an indefinite period, is he or she a "regular substitute" and thus eligible for Jarema credit? Yes said the Court. Further, the teacher can be deemed to have earned this credit retroactively, even if the district explicitly described the conditions of employment differently in the hiring process.

In other words, one can become a "regular substitute" by virtue of one's service even if the job was described differently at is onset. The Court explained that the "ambiguous statutory term 'regular substitute' should be defined by the actual nature and continuity of the substitute service, not by the anticipated duration of the replaced teacher's absence."

Jarema credit may open the door to tenure by estoppel should a school board accepts the continued services of a teacher, but fail to take the action required by law to either grant or deny tenure prior to the expiration of the educator's probationary term..

In this instance, a Board of Cooperative Educational Services [BOCES] employed two types of substitute teachers: "per diem substitutes" and "regular substitutes."

Per diem teachers were employed for an indefinite period in order to cover the absences of regular teachers.  Per diem teachers were paid at a daily rate and had limited employment benefits.

In contrast, BOCES' "regular substitutes" were teachers who received a "special appointment for a fixed time." Regular substitutes were typically paid from a salary line temporarily available because the regular teacher was on a leave of absence. Regular substitutes also received a prorated annual salary with full benefits.

In adjudicating an educator's claim that she had attained tenure by estoppel the Court held that  "... as probationary periods are employed to determine if appointees are 'competent, efficient and satisfactory' for purposes of recommending tenure, there is no reason why [the educator's] service following her initial appointment should be considered anything less than time accrued towards reducing the [mandatory] probationary period the statute requires."

Thus opined the Court, tenure evaluations can be made regardless of the title under which the probationer serves. A school board may not undermine the policies behind the tenure system and artificially extend the probationary period by designating a position "acting" or "temporary," said the Court.

In addition, the Court rejected BOCES' argument that sanctioning a "surprise" acquisition of tenure by estoppel would both saddle school districts with the administrative burden of tracking the probationary term for teachers on a day-to-day basis and deny them the full statutory period in which to consider qualifications for tenure.

The Court said that such an argument assumes the wrong perspective on the tenure rules.

It said that its prior opinions has made clear that tenure rules should be read so as to discourage a board's use of technical obstacles and manipulable labels that can deprive a qualified teacher of tenure rights. Further, the distinction between "definite" and "indefinite" leaves does not in fact assure BOCES predictability or certainty since a "definite term" is not a requirement for regular substitute service. Indeed, even where a regular substitute is engaged for a "definite term" to replace a tenured teacher, the absence may end unexpectedly and the tenured teacher can insist upon early return to the encumbered position.

Noting that in this instance the educator had continuous service with BOCES, the Court ruled that she was entitled to Jarema credit that, when combined with her additional service with BOCES, entitled her to tenure.

* Typically referred to by the name of the bill's sponsor, then Member of the Assembly  Stephen J. Jarema, Education Law §2573[1][a], in pertinent part, provides that “Teachers and all other members of the teaching staff, authorized by section twenty-five hundred fifty-four of this article, shall be appointed by the board of education, upon the recommendation of the superintendent of schools, for a probationary period of three years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years … the probationary period shall be limited to one year….”

The decision is posted on the Internet at:

https://www.leagle.com/decision/199720090ny2d1101193