Public policy in New York State favors arbitral resolution of public sector labor disputes

In Matter of County of Nassau v Detectives Assn., Inc. of the Police Dept. of Nassau County,188 AD3d 1049, the Appellate Division rejected Nassau County's petition to permanently stay arbitration of  contract grievance and granted the Union's motion to compel arbitration of the grievance. The grievance alleging that employees in the collective bargaining unit represented by the Detectives Association were not receiving longevity payments in accordance with "a memorandum of agreement"  between the parties.   

Nassau County had contended that the disputed memorandum of agreement between the County and the Association was invalid and unenforceable.

The Appellate Division disagreed, holding:

1. The County had not identified any constitutional, statutory, or public policy prohibition to arbitrating this grievance, citing Matter of Board of Educ. of the Yonkers CitySch. Dist. v YonkersFedn. of Teachers, 180 AD3d at 1042);

2. The issue was whether the County and the Association agreed to arbitrate this dispute; and

3. The arbitration provision of the relevant collective bargaining agreement was broad, and "there is a reasonable relationship between the subject matter of the dispute," which involved longevity payments, and the general subject matter of the collective bargaining agreement.

The full text of Detectives Association, set out below, has been cited in the decisions listed below involving similar grievances, to the same effect.

1. County of Nassau v Civil Service Employees Association, decision posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_01748.htm;

2. County of Nassau v Nassau County Sheriff's Correction Officers Benevolent Association, Inc., et al., decision posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_01749.htm;

3. County of Nassau v Superior Officers Association of the Police Department of the County of Nassau, Inc., et al., decision posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_01750.htm;

4. In the Matter of County of Nassau v Civil Service Employees Association, etc., decision posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_01766.htm;

5. County of Nassau v Superior Officers Association of the Police Department of the County of Nassau, Inc., et al., decision posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_01750.htm;

6. In the Matter of County of Nassau v Nassau County Sheriff's Correction Officers Benevolent Association, Inc., decision posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2021/2021_01767.htm; and

7. In the Matter of County of Nassau v Superior Officers Association of the Police Department of the County of Nassau, Inc., decision posted on the Internet at
http://www.nycourts.gov/reporter/3dseries/2021/2021_01768.htm;

 

In the Matter of County of Nassau, Appellant, v Detectives Association, Inc. of the Police Department of Nassau County, Respondent.

Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, NY(Peter A. Bee, William C. DeWitt, and Jason Greenfield of counsel), for appellant.

Steven E. Losquadro, P.C., Rocky Point, NY(John Ciampoli of counsel), for respondent.

"In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of the respondent's grievance arising from a memorandum of agreement dated September 15, 2017, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered March 12, 2019. The order and judgment denied the petition to permanently stay arbitration and granted the respondent's motion to compel arbitration.

"Ordered that the order and judgment is affirmed, with costs.

"The County of Nassauand the Detectives Association, Inc., of the Police Department of Nassau County (hereinafter the DAI) are parties to a collective bargaining agreement (hereinafter the CBA). In 2018, pursuant to the procedures set forth in the CBA, the DAI submitted a grievance alleging that its members were not receiving longevity payments in accordance with a memorandum of agreement dated September 15, 2017 (hereinafter the MOA). By verified petition, the County commenced the instant proceeding pursuant to CPLR article 75 to permanently stay arbitration. The DAI moved to dismiss the petition and to compel the County to submit to arbitration. The Supreme Court denied the petition and granted the DAI's motion to compel arbitration. The County appeals. We affirm.

"[A] party who has not participated in the arbitration and who has not made or been served with an application to compel arbitration, may apply to stay arbitration on the ground that a valid agreement was not made or has not been complied with" (CPLR 7503 [b]). "The 'valid agreement' referred to in CPLR 7503 concerns a valid agreement to arbitrate" (Matter of Prinze [Jonas]. . , 38 NY2d 570, 577 [1976]). "Thus even when it is alleged . that the contract itself is invalid in its entirety, the court's role is still confined to determining the validity of the arbitration clause alone" (id.at 577). "If the arbitration agreement is valid, any controversy as to the validity of the contract as a whole passes to the arbitrators" (id.).

"Public policy in New York favors arbitral resolution of public sector labor disputes" (Matter of Board of Educ. of the Yonkers City Sch. Dist. v Yonkers Fedn. of Teachers, 180 AD3d 1041, 1042 [2020] [internal quotation marks omitted]). "However, a dispute between a public sector employer and an employee is only arbitrable if it satisfies a two-prong test" (id. at 1042 [internal quotation marks omitted]). "First, the court must determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance" (id.). "If there is no prohibition against the arbitration, the court must determine whether the parties agreed to arbitrate the particular dispute by examining their collective bargaining agreement" (id. [internal quotation marks omitted]). Where "the relevant arbitration provision of the CBA is . a court should merely determine whether there is a reasonable . broad, . relationship between the subject matter of the dispute and the general subject matter of the CBA" (Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 176 AD3d 1197, 1199 [2019] [internal quotation marks omitted]). "If there is none, the issue, as a matter of law, is not arbitrable" (id. at 1199 [internal quotation marks omitted]). "If there is, the court should rule 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" (id. [internal quotation marks omitted]).

"Here, we agree with the Supreme Court's determination denying the County's petition to permanently stay arbitration and granting the DAI's motion to compel the County to submit to arbitration. The County has not identified any constitutional, statutory, or public policy prohibition to arbitrating this grievance (see Matter of Board of Educ. of the Yonkers CitySch. Dist. v YonkersFedn. of Teachers, 180 AD3d at 1042). Thus, the issue is whether the County and the DAI agreed to arbitrate this dispute (see id.). The arbitration provision of the CBA is broad, and there is a reasonable relationship between the subject matter of the dispute, which involves longevity payments, and the general subject matter of the CBA (see Matter of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 176 AD3d at 1199). Accordingly, the grievance was arbitrable, and any issues regarding the validity and effect of the MOA were for the arbitrator to determine under the CBA's grievance procedures (see Matter of Prinze [Jonas], 38 NY2d at 577).

"The County's remaining arguments are without merit. Roman, J.P., Duffy, Barros and Connolly, JJ., concur."

 

 

Disciplinary charges brought more than 18 months after the incident held timely upon being shown to constitute a crime

The New York City Police Department [NYPD] terminated a police officer [Plaintiff] found guilty of charges that if proven in court, would constitute assault in the third degree. In addition to termination, Plaintiff's dismissal resulted in the forfeiture of his retirement benefits. Plaintiff appealed, contending that charges and specifications brought against him by the Civilian Complaint Review Board [CCRB] were untimely as "the charges were brought more than 18 months after the incident."

The presiding hearing officer, NYPD's Deputy Commissioner - Trials, ruled that the CCRB was required to show by a preponderance of the credible evidence that the underlying facts, if proven in court, would constitute a crime in order to go forward with the disciplinary action. The Deputy Commissioner then found, "by a preponderance of the credible evidence", that Plaintiff was guilty of assault in the third degree, as charged in the first specification, in that Plaintiff acted recklessly in the course of his attempting to arrest an individual and his recklessness "was a significant factor" which contributed to the individual's death.

The Deputy Commissioner's Report to the Police Commissioner recommended Plaintiff's dismissal from the NYPD and the Commissioner approved the Report and Recommendation and issued a final order dismissing Plaintiff from the NYPD.

Plaintiff then initiated a CPLR Article 78 proceeding seeking a court order annulling the Commissioner's determination and directing his reinstatement. Plaintiff contended that the CCRB failed to present substantial evidence of his guilt and that the penalty of dismissal was shocking to the conscience.

The Appellate Division found that substantial evidence supported the conclusion that Plaintiff had "recklessly caused injury to [the individual] by maintaining a prohibited chokehold for 9 to 10 seconds after exigent circumstances were no longer present, thereby disregarding the risk of injury."

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, and other decisions, the Appellate Division said it did not find the penalty imposed on Plaintiff "so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness" and opined that in Matter of Alfieri, 38 NY2d at 977, "[c]onduct far less serious than [Plaintiff's] has been found by the Court of Appeals to have a "destructive impact ... on the confidence which it is so important for the public to have in its police officers".  

Click HEREto access the text of the Appellate Division's decision.

 

Dismissal of an employee before completion of the probationary period

Citing Matter of Childs v Board of Educ. of the City Sch. Dist. of the City of N.Y., 176 AD3d 560, the Appellate Division unanimously affirmed Supreme Court's denial of the Plaintiff's petition seeking a court order annulling his former employer's determination dismissing Plaintiff from his employment as a probationary teacher. The court's decision notes that a probationary employee may be terminated "without a hearing for any reason or no reason at all, as long as the dismissal was not unlawful or in bad faith".

The court said that the record supported a finding that Plaintiff was terminated in good faith as it was based on Plaintiff's "declining performance evaluations and incidents of disciplinary misconduct" which the employer had documented over a period of several months.

As to Plaintiff's claim that he was terminated in retaliation for his reporting another teacher's alleged misconduct involving a student, the Appellate Division opined that this argument was speculative in light of the evidence in the record of Plaintiff's "deficient work performance and his disciplinary misconduct."

With respect to the termination of an employee before the competition of the appointee's maximum period of probation, in York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule with respect to the dismissal of probationary employees. In York the high court held that "[a]fter completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith."

In the event the appointing authority decides to dismiss an employee during the minimum probationary period, the employee is entitled to the notice and hearing that would otherwise be available to a tenure employee. 

Click HEREto access the Appellate Division's decision.

 

Municipal audits released by the State Comptroller during the week ending March 26, 2021

On March 26, 2021 New York State Comptroller Thomas P. DiNapoli announced the following local government audits have been issued: 

Click on the text in color to access the full text of the audit. 

City of Johnstown – Information Technology (Fulton County)  City officials did not adequately safeguard information technology (IT) resources to ensure personal, private and sensitive information (PPSI) was protected. The failure to protect PPSI can have significant consequences on the city, such as reputation damage, lawsuits, a disruption in operations or a security breach. Auditors determined that city officials did not develop adequate IT policies and procedures or provide IT security awareness training. City officials did not have a complete and accurate IT asset inventory. They also did not properly manage user accounts or ensure unneeded administrative and user accounts were disabled. Sensitive IT control weaknesses were communicated confidentially to officials.

 

City of Johnstown – Financial Management (Fulton County)  City officials did not maintain accurate and complete financial information to adequately manage operations. The treasurer did not maintain accurate accounting records. The treasurer filed the required annual financial reports late for fiscal years 2016 and 2017 and did not file the reports for 2018 or 2019 as of Dec. 2, 2020. Without accurate financial records, the common council did not have accurate financial information to monitor the city’s financial condition, and does not know the city’s current financial condition. The council also did not adequately plan and monitor emergency medical services financial operations. As a result, the city could lose out on significant revenue.

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Determining eligibility for a two-year leave of absence on Workers' Compensation Leave as the result of an alleged assault sustained in the course of employment

§71 of the Civil Service Law, as relevant in this action, provides that in the event "an employee has been separated from the service by reason of a disability resulting from occupational injury or disease as defined in the [New York State's Workers' Compensation Law,] he or she shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position."

§71 further provides that "where an employee has been separation from the service by reason of a disability resulting from an assault sustained in the course of his or her employment, he or she shall be entitled to a leave of absence for at least two years, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position."

The employee [Plaintiff] in this CPLR Article 78 action was a correction officer and suffered injuries inflicted by a combative inmate. Plaintiff was able to work for a few days after the incident but then did not report to work, was placed on workers' compensation leave, and has since remained continuously out of work. The Appointing Authority [Employer] subsequently notified Plaintiff that her employment would be terminated* as her absence from employment at that point in time exceeded one cumulative year of absence.

Plaintiff objected to the termination and requested that she be granted a two-year leave of absence based on "the inmate's assaultive behavior." The Employer rejected Plaintiff's request and terminated. Plaintiff appealed, contending that she was entitled to a two-year leave of absence as a matter of law as she was the victim of an assault by an inmate in the course of her performing the duties of her position.

The Appellate Division's decision noted that the Employer defines the term assault as "an intentional physical act of violence directed towards an employee by an inmate or parolee." while, in contrast, Plaintiff contends the definitions of assault set forth in Penal Law §§120.00(1) and 120.0 (1), (3) and (7) should control.

Citing Morales v New York StateDept. of Corr. & Community Supervision, 2021 NY Slip Op 01459, the Appellate Division opined that while the record indicates that the inmate was combative and struck another correction officer, there is no indication that Plaintiff's injury resulted from the inmate's "intentional physical act of violence directed towards [her]".

Under the facts presented, the Appellate Division said it concluded that the Employer's determination was not arbitrary and capricious or irrational and sustained the Employer's determination.

* A termination pursuant to §71 is not pejorative as the individual may, within one year after the termination of the disability, apply to the civil service commission having jurisdiction for a medical examination and if certified as physically and mentally fit to perform the duties of his or her former position, he or she is be reinstated to his or her former position, if vacant, or to a vacancy in a similar position or a position in a lower grade in the same occupational field, or to a vacant position for which he or she was eligible for transfer. If no appropriate vacancy which reinstatement may be made is available, the name of individual is placed on a preferred list and he or she is eligible for reinstatement from such preferred list for a period of four years.

Click HERE to access the full text of the Appellate Division's decision.

 

Determining a reasonable disciplinary penalty to be imposed on the employee "under the circumstances"

The petitioner [Plaintiff] in this CPLR Article 78 action challenging his termination from his position after being found guilty of disciplinary charges brought against him alleging "gross misconduct-falsification of business records." The Appellate Division, after granting Plaintiff's petition to review the penalty imposed by the Employer [Appointing Authority], remitted the matter to the Appointing Authority for the imposition of a lesser penalty.*

The Appointing Authority did, in fact, imposed a lesser penalty: demotion to a lower grade position. Plaintiff sought review of this new penalty. 

Supreme Court vacated the penalty of demotion and imposed a still lesser disciplinary penalty, a 30-day suspension without pay. Supreme Court further directed that Plaintiff "be restored to his prior position" and remitted the matter to the Appointing Authority to calculate the "back salary and lost compensation" owed to the Plaintiff. The Appointing Authority appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division, citing Matter of Waldren v Town of Islip, 6 NY3d 735 and other court decisions, explained that an "administrative penalty must be sustained unless 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 court then opined that an administrative penalty is shocking to one's sense of fairness "if the sanction imposed is so grave in its impact on the individual subject to it that it is disproportionate to the misconduct, incompetence, failure, or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the dereliction of the individual."

Sustaining the Supreme Court determination that the new penalty imposed by the Appointing Authority "was again shocking to one's sense of fairness," the Appellate Division observed that "[t]he penalty of demotion by four salary grades, resulting in an approximate 37% decrease in salary, was so grave in its impact on the [Plaintiff] that it was disproportionate to the misconduct" involved.

In mitigation of imposing the penalty of demotion the court opined that Plaintiff, "had never, in his more than 20-year career with the [agency], been subject to discipline before he was found guilty of the instant offense, and had received positive work performance reviews." In addition, the Appellate Division noted that the Plaintiff was in poor health "when he committed the subject act of misconduct."

Under the particular circumstances of this case, however, the Appellate Division ruled that the reduced penalty imposed by the Supreme Court "was inadequate to address the gravity of the [Plaintiff's] misconduct and the resulting harm to the appellants and the public." Vacating the imposition of a penalty of a 30-day suspension without pay, the Appellate Division remitted the matter to the Appointing Authority "for the imposition of a penalty of one-year suspension without pay."

* See Matter of Sullivan v County of Rockland, 150 AD3d 743.

Click HEREto access the text of the Appellate Division's decision in this matter.

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New York State Comptroller Thomas P. DiNapoli announced the following audits were issued on March 22, 2021.

The following audits were issued by the New York State Comptroller March 22, 2021:

Click on the text highlighted in color to access the complete audit report.

MUNICIPAL AUDITS

On March 22, 2021 New York State Comptroller Thomas P. DiNapoli announced the following local government audits have been issued.

 

Town of Adams – Justice Court Operations (Jefferson County)

Overall, auditors found court funds were properly recorded, deposited and reported during our audit period. Corrective actions were recommended, however, after auditors found the board’s annual audit of the justices’ books and records is inadequate because it primarily relies on the clerk to perform the review procedures. Also, auditors found none of the justices prepared monthly accountabilities or bank reconciliations. In addition, cash in a retired justice’s bank account exceeded known liabilities by a total of $1,104.

 

Andes Joint Fire District – Financial Activities (Delaware County)

The Board of Fire Commissioners (Board) did not establish adequate controls over cash receipts and disbursements. The board did not segregate duties or provide additional oversight over receipts and disbursements to ensure the treasurer recorded all transactions accurately and timely. The board did not comply with New York State Town Law (Town Law) Section 176. Thirty debit card purchases totaling $4,680 were not audited and approved before payment.

 

Davenport Fire District – Financial Activities (Delaware County)

District officials have not established adequate controls to ensure that financial activities are properly recorded and reported, and cash is safeguarded. There were no records to support the collection of hall rental receipts. As a result, the Board of Fire Commissioners (Board), the district’s treasurer (Treasurer) or auditors are unable to verify whether all hall rental receipts were collected and deposited in a district bank account.

 

City of Hornell – Foreign Fire Insurance Funds (Steuben County)

Officials did not adopt policies and procedures guiding the handling of foreign fire insurance (FFI) tax money and provide oversight to ensure accurate records were maintained, and adequate supporting documentation and approvals were obtained. The Chamberlain did not maintain custody of the FFI tax money. The fire chief was solely responsible for disbursing, recording and reporting all transactions related to FFI tax money.

 

Village of Mayville – Online Banking (Chautauqua County)

Online banking transactions that were reviewed were appropriate, properly supported and authorized, however the board should ensure transactions are secure. The board did not adopt a written online banking policy or implement adequate procedures to monitor and control online banking transactions.

In addition, a dedicated computer was used for online banking but authorized users were not provided with security awareness training.

 

Village of Poquott – Justice Court Operations (Suffolk County)

The Justice Court did not properly account for court funds. The Justice was unaware that in August 2016, the court clerk deposited $6,525 belonging to a neighboring village’s justice court for which she also worked. The error was corrected in October 2016 when she transferred the money between two accounts. The justice was unaware that the court clerk filed 11 of 15 monthly reports of money collected (73 percent) to the JCF after the due date. On average, reports were 14 days late.

 

Town of Wappinger – Recreation Department Cash Receipts (Dutchess County)

Town officials did not develop adequate policies and procedures over department cash collections and did not ensure that cash is deposited timely. Officials did not provide adequate oversight of the department cash receipts process and the duties of the recreation director (Director), and department staff responsibilities were inadequately segregated. Department staff did not deposit 543 collections totaling $42,861 (composed of cash and checks) within 10 days, as required. For example, in July 2019, one deposit (composed of $3,085 in cash and $10,810 in checks) was deposited between 11 and 69 days after the collections.

 

SCHOOL DISTRICT AUDITS

New York State Comptroller Thomas P. DiNapoli today announced the following school district audits were issued on March 22, 2021.

Dryden Central School District – Information Technology (Cortland County, Tioga County and Tompkins County)

The Board and District officials did not adequately safeguard personal, private and sensitive information (PPSI). Officials did not ensure information technology (IT) existing policies were enforced (or enforceable). In addition, officials did not ensure IT policies were up-to-date with current technology changes. User accounts were not regularly reviewed and unnecessary accounts were not disabled.  Officials did not maintain up-to-date IT asset inventory records or enter into adequate written contracts with all IT service providers.

 

Whitesboro Central School District – Separation Payments (Herkimer County and Oneida County)

District officials did not ensure that separation payments are accurately calculated, supported and disbursed. Auditors questioned payments to three employees totaling $108,963. District officials paid two former administrators separation payments totaling $66,368 that were not supported by their individual employment contracts and were based on a board resolution adopted over 20 years before their contracts were approved.  District officials also, allowed a former assistant principal to retire early and receive a $42,595 separation payment and post-employment health benefits that he otherwise would not have been eligible for based on the collective bargaining agreement.

 

Wyoming Central School District – Professional Services (Genesee County and Wyoming County)

District officials did not always use a competitive method to procure professional services or enter into written agreements with service providers. The district paid 11 professional service providers a total of $189,000 without using requests for proposals (RFPs) as required by the district’s procurement policy.

 

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Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 180,000 contracts, billions in state payments and public authority data. Visit the Reading Room for contract FOIL requests, bid protest decisions and commonly requested data.