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December 13, 2019

Constitutional grounds for presidential Impeachment.


The report by the majority staff of the House Committee on the Judiciary is posted on the Internet at:

New York State Division Of Human Rights achieves settlement agreement in investigation into denial of marriage license to same sex couple


On December 13, 2019, the New York State Division of Human Rights (DHR) announced today that it has reached a settlement agreement with the Town of Root, New York. The agreement follows the denial of a marriage license to a same sex couple by the Town Clerk in Montgomery County

Governor Andrew M. Cuomo directed DHR to investigate the matter which concluded that the Town of Root had failed to meet their obligation to not discriminate under state law.*

On July 30, 2018, Town of Root residents Dylan Toften and Thomas Hurd sought to obtain a marriage license from their Town Clerk, Sherrie Eriksen.  Even though Mr. Toften and Mr. Hurd had the requisite documents with them, Ms. Eriksen refused to process their application. On August 1, 2018, Governor Cuomo directed DHR to open an investigation into the denial of the marriage license.

DHR’s investigation revealed that couples were treated differently by the Clerk’s office based on their sexual orientation. DHR determined that there was probable cause the Town of Root violated that state law, which mandates that no application for a marriage license be denied on the grounds that the parties are of the same sex and prohibits government entities from treating individuals seeking to get married differently because of their sexual orientation.

Under the terms of today’s settlement, the Town of Roothas agreed to pay a civil fine and penalty to New York State.  The Town has also agreed to adopt new non-discriminatory policies that will ensure that all individuals in the Town have an equal opportunity to obtain a marriage license.  In addition, the Town will train its current and future employees on the provisions of the State Human Rights Law and will be required to post the Division’s anti-discrimination poster in a conspicuous and public location in the Town building.  In a previously announced agreement, the Town of Root also paid a settlement of $25,000 to Mr. Toften and Mr. Hurd and Town Clerk Eriksen issued a public apology.

* Governor Cuomo and his administration have long been committed to supporting LGBT rights and ensuring that no one suffers discrimination because of their sexual orientation.  In October 2019, he signed legislation conforming laws in estate planning and surrogates court procedures to the Marriage Equality Act.  Under his administration, DHR, in 2014, achieved the settlement of a discrimination complaint against a town in the Finger Lakes region that allegedly denied a spot on a local planning board to an attorney because she was a lesbian.  In 2014, DHR also issued an order finding that an marriage venue in Rensselaer County had discriminated against a same-sex couple by denying the opportunity to have their wedding onsite.  

December 12, 2019

Determining if the alleged violation of a provision in a collective bargaining agreement is arbitrable


In New York State the court's apply the tests applied to determine if an alleged violation of a term set out in a collective bargaining agreement [CBA] entered in by a public entity and a recognized or certified employee organization may be submitted to arbitration are as follows:

1. Initially, the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance; and

2. If there is no prohibition against arbitrating the issue, the court then considers the parties' CBA and determines if the parties, in fact, agreed to arbitrate the particular dispute.

In examining the CBA courts merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA. Further, in the event the court rules the matter arbitrable and that the arbitrator will then make a more exacting interpretation of the precise scope of the substantive provisions of the CBA, it may not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute.

In this action the Employer  and an Employee Organization [EO1] were parties to a CBA that provided that Employer was to pay members of EO1 in the collective bargaining unit a certain percentage more than the rate of pay of certain employees in a different collective bargaining unit.

Subsequently a different union representing the employees in a different collective bargaining unit [EO2] entered into an agreement with  Employer to increase the salaries of its members in that collective bargaining unit, including salary increases for years past, 2016 and 2017. However, the EO2 CBA also provided for a waiver of the receipt of retroactive pay for those years. 

The EO1 filed a grievance on behalf of its members seeking payment for retroactive salary increases for the years 2016 and 2017 for its members in EO1.

Employer denied the grievance, finding that the CBA did not contain a provision requiring it to pay EO1 members a retroactive salary based on the retroactive pay increases Employer had negotiated with EO2 for the employees in the collective bargaining unit EO2 represented. When EO1 demanded Employer's decision be submitted arbitration Employer commenced a CPLR Article 75 seeking to stay the arbitration. EO1 cross-moved to compel arbitration.

When Supreme Court denied Employer's petition and granted EO1's cross motion, Employer appealed the Supreme Court' ruling to the Appellate Division. 

As Employer did not contend that arbitration of the grievance was prohibited by law or public policy, the Appellate Division ruled that only issue before it was whether the parties agreed to arbitrate this particular grievance. 

The Appellate Division concluded that the arbitration provision of the CBA at issue was broad and that there was a reasonable relationship between the subject matter of the dispute, which involves the EO1's claim that its members are entitled to certain payments for retroactive salary increases, and the general subject matter of the CBA.

Noting that some uncertainty existed as to whether the subject matter of the dispute is encompassed within the salary provisions of EO1's CBA or whether the parties contemplated that a separate agreement would be required for wage increases to be paid retroactively, the Appellate Division, citing Board of Educ. of Watertown City School Dist. v Watertown Educ. Assn., 74 NY2d 912, explained that any alleged ambiguity in the EO1 CBA "regarding the coverage of any applicable provision is ... a matter of contract interpretation for the arbitrator to resolve."

The decision is posted on the Internet at:

December 09, 2019

Constitutional Grounds for Presidential Impeachment


The report by the majority staff of the House Committee on the Judiciary dated December, 2019, is posted on the Internet at:

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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