An appointing authority's refusal to participate does not prevent the hearing officer or arbitrator from holding the hearing in absentia and issuing a decision

The New York State Department of Corrections and Community Supervision [DOC] served a notice of discipline on an employee [Individual] setting out five charges against the Individual, each of which centered around the same operative facts -- that the Individual allegedly filed false or misleading incident reports and complaints against her supervisor, with the only difference in the charges being the person or entity to which the Individual's remarks were directed. 

Individual's collective bargaining representative [CSEA] filed a grievance  pursuant to the disciplinary grievance procedure set out in the relevant collective bargaining agreement [CBA]  and the matter was eventually submitted to arbitration, the final step in the contract disciplinary grievance procedure.

CSEA moved to dismiss three of the five charges and a filed a separate motion to preclude certain evidence from being admitted at the disciplinary hearing prior to the arbitration hearing. After allowing the parties to submit their respective arguments in writing, the arbitrator granted CSEA's motion to dismiss in part, dismissing one of the three charges CSEA asked to be withdrawn. The arbitrator also granted CSEA's motion to preclude the introduction of certain evidence in full.

DOC then advised the arbitrator that it would not appear for the hearing unless the arbitrator vacated her earlier decision and reinstate the charge she had dismissed pursuant to CSEA's motion. The arbitrator and DOC subsequently exchanged correspondence over a number of weeks in which DOC reiterated several times that it would not proceed unless all charges — including the charge dismissed by the arbitrator — were heard. Finally DOC move to have the arbitrator recuse herself from the proceeding.

The arbitrator declined to recuse herself, proceeded with the matter notwithstanding the absence of DOC and issued a decision and award without holding an evidentiary hearing. 

The arbitrator dismissed all of the surviving charges and directed that DOC reinstate Employee to her former position "with full back pay and benefits." DOC appealed the arbitrator's award.

The Appellate Division dismissed DOC's appeal, agreeing with the arbitrator that DOC "[did] not meet [its] burden of proof established in the [CBA]" since it "presented no evidence or testimony to prove that [Employee was] guilty of the alleged misconduct identified in the ... notice of discipline."

Finding that DOC "did not waive its right to challenge any of the issues by refusing to participate in the hearing and that the arbitrator exceeded her authority under the relevant CBA provisions by dismissing one charge prior to an evidentiary hearing, Supreme Court granted DOC's cross motion, vacated the arbitration award in its entirety and remanded the matter for "rehearing before a new arbitrator." CSEA appealed Supreme Court's decision.

The Appellate Division reversed the Supreme Court's ruling, holding that the arbitrator acted within her authority and in a manner consistent with the requirements of the CBA and the CPLR. Noting that public policy and the courts have long favored parties' efforts to resolve their disputes by means other than litigation, namely through the alternative submitting the issue to mediation or arbitration, the Appellate Division explained that "[T]he announced policy of this [s]tate favors and encourages arbitration as a means of conserving the time and resources of the courts and the contracting parties," citing Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d 91.

Further, declared the Appellate Division, an arbitration award "must be upheld when the arbitrator offers even a barely colorable justification for the outcome reached," although it may be vacated when "it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." Thus "[c]ourts must give deference to an arbitrator's decision and cannot examine the merits of an arbitration award, even if the arbitrator misapplied or misinterpreted law or facts," noting the ruling handed down in Shenendehowa Cent. School Dist. Bd. Of Educ. [Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864], 90 AD3d 1114.

The Appellate Division then reversed the Supreme Court's the order "on the law" and granted CSEA's application to confirm the arbitration award while denying DOC's cross motion to vacate the arbitration award.

Another case, Aures v Buffalo Board of Education, 272 A.D.2d 664, presented a similar situation.

In Aures, the employer, the Buffalo City School District, failed to appear at an unemployment insurance hearing as scheduled. The hearing officer proceeded to hold the hearing “in absentia” and awarded unemployment insurance benefits to the claimant seeking unemployment insurance benefits. Rejecting Buffalo’s appeal challenging the award of such benefits, the Appellate Division ruled that the determination of the Unemployment Insurance Administrative Law Judge was binding on the parties.

The decision in Matter of the Arbitration between CSEA and DOC is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07007.htm.

The exhaustion of administrative remedies is a prerequisite to initiating a judicial challenge to a final administrative decision

Petitioner [Facility] in this CPLR Article 78 action to review a determination by the New York State Department of Health's Office of the Medicaid Inspector General [OMIG] appealed the order and judgment of Supreme Court dismissing Plaintiff's Article 78 petition.

OMIG had issued its final audit report of an assisted living facility's [Facility] Assisted Living Program applications for Medicaid reimbursement and commenced efforts to recover alleged over-payments made to Facility. 

Facility requested an administrative hearing to challenge OMIG's audit report's findings. On the same day Facility initiated a CPLR Article 78 proceeding contending that OMIG's report "was affected by an error of law and was arbitrary, capricious, and an abuse of discretion" in an effort to obtain a court order annulling OMIG's final audit report and obtain certain other judicial relief. OMIG then cross-moved to dismiss Facility's Article 78 petition, arguing that Facility had failed to exhaust its administrative remedies before seeking judicial intervention. 

Supreme Court granted OMIG's cross motion to dismiss the Facility's petition and Facility appealed that ruling.

The Appellate Division sustained the Supreme Court's holding that Facility was required to exhaust its administrative remedies before commencing its Article 78 special proceeding. The court opined that "It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate [its  objection] in a court of law," citing Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52.*

Addressing Facility's contention that it had raised a constitutional challenge alleging that OMIG exceeded its authority and violated Article III, §1, of the New York State Constitution in arriving at its ruling, the Appellate Division explained that "A constitutional claim that hinges upon factual issues reviewable at the administrative level must first be addressed to the agency so that a necessary factual record can be established." Further, said the Court, "... the mere assertion that a constitutional right is involved will not excuse the failure to pursue established administrative remedies that can provide the required relief."

Noting that Facility's constitutional claim hinged on factual issues concerning OMIG reaching its determination, the Appellate Division opined that such issues "must first be addressed in an administrative proceeding."

The Appellate Division also said it agreed with the Supreme Court's finding that Facility "failed to demonstrate that resort to an administrative appeal would be futile or that it would suffer irreparable injury based upon its conclusory claim of financial distress" and affirmed the lower court's order granting OMIG's motion to dismiss Facility's petition for failure to exhaust administrative remedies.

* The Appellate Division, however, also noted that "The exhaustion rule, however, is not an inflexible one. It is subject to important qualifications. It need not be followed, for example, when an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, or when resort to an administrative remedy would be futile or when its pursuit would cause irreparable injury" citing see Town of Oyster Bay v Kirkland, 81 AD3d 812.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07054.htm.

 

An appointing authority may not require an employee to perform "out-of-title" work except in an emergency

The Watertown Professional Firefighters' Association, Local 191 [Association] commenced this CPLR Article 78 proceeding, later converted into a declaratory judgment action, seeking a court order prohibiting the City of Watertown [City] from [1] assigning a fire captain to perform municipal training officer (MTO) duties and [2] assigning  firefighters to ride in the right front seat of the fire department's rescue vehicle and to perform certain duties alleged to those of captain.

The Association contended that both such assignments constituted out-of-title work in violation of Civil Service Law §61(2).* 

Supreme Court's ruled that:

1. The appointing authority may not designate a firefighter to serve as an "acting captain" except in legitimate emergency situations; and

2. The appointing authority may appoint a fire captain to perform "municipal training officer duties."

In the appeal that followed, the Appellate Division said it agreed with the Supreme Court's rulings that the fire captain was not assigned out-of-title work with respect to being assigned MTO duties and that the City was prohibited from appointing firefighters to acting captain positions except in legitimate emergency situations.

The Appellate Division, however, noted that Supreme Court "failed to declare the rights of the parties with respect to the MTO duties performed by the fire captain." Citing Skalyo v Laurel Park Condominium Bd. of Mgrs., 147 AD3d 1358, the Appellate Division modified the lower court's decision by "making the requisite declaration."

* §61(2) of the Civil Service Law provides as follows: No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_06898.htm

 

The authority of a governor of New York State to grant individuals reprieves, commutations and pardons

On October 16, 2018, New York Governor Andrew M. Cuomo signed into law as Chapter 374 of the Laws of 2018 a bill permitting the "people" of New York State to pursue state charges against individuals who were "accused of federal crimes and receive a presidential pardon."*

With respect New York State governors issuing a "state pardon or reprieve," Article IV, §4 of New York State's Constitution provides that the "governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations, as he or she may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons."

Clearly this power to pardon for offenses other than for treason and in cases of impeachment is not available to a sitting governor to grant in anticipation of an individual's being convicted of an offense at some date in the future in contrast to being available to a sitting governor after the individual has been convicted of the offense alleged or in the event the individual entered a plea of guilty to the offense alleged in open court.**

May a governor pardon himself or herself for an offense? 

If a governor were to attempt to do so it appears that in so doing he or she has created a "Catch 22" type situation -- a dilemma from which there is no escape because of mutually conflicting or dependent conditions -- made famous in author Joseph Heller's novel Catch-22.

Assuming, but not conceding, that a governor of New York State could pardon or reprieve himself or herself for an alleged offense, he or she could only do so after having been tried and convicted of the offense or had entered a plea of guilty of the offense before or in the course of a trial in the normal course of providing him or her with due process of law.

However, §30.1(e) of New York State's Public Officers Law provides, in pertinent part, that "Every office shall be vacant upon the incumbent's conviction of a felony, or a crime involving a violation of his oath of office."

As any person eligible for an Article IV, §4 pardon or reprieve is so eligible only by reason of his or her conviction or admission of being guilty of a qualifying offense, an effort by a governor to pardon or grant a reprieve to anyone, including himself or herself, following his or her conviction, or his or her entry of a plea of guilty of the alleged offense, may find himself or herself trapped in a "Catch 22" situation in the event his or her conviction or guilty plea of the offense charged results in his or her automatic "removal from office" pursuant to Public Officers Law §30.1(e) and thus his or her forfeiting any and all authority to grant a pardon or reprieve.

On the other hand, should an individual be found not guilty of the alleged offense, there appears to be no basis, or indeed reason, for a governor to issue a pardon or reprieve under the circumstances as the individual is not exposure to an action "by the people" for the same offense in the future as New York State's Criminal Procedure Law §40.20.1 provides that "A person may not be twice prosecuted for the same offense."

In any event, a pardon or reprieve by a governor is in the nature of "neutralizing a conviction for an offense" by the then sitting governor granted to an individual earlier found guilty of committing an offense in contrast to a sitting governor's effort to neutralize the conviction of an individual found guilty of an offense after such governor has left office.

* New York State's Penal Law was amended by adding a new section, §40.51, authorizing the prosecution of individuals "by the people" of New York State in the event an individual was "granted a reprieve, pardon or other form clemency" by the President of the United States for an offense pursuant to the provisions of §2 of Article II of the United States Constitution "when certain conditions are met" by deeming any federal prosecution of the individual not to have occurred.

** See Depamphilis v Kelly, 107 AD3d 611. A plea of guilty to the offense entered in open court is deemed to be a conviction of the offense.