New York Civil Service Attorney Law Blog : New York Civil Service Lawyer & Attorney : Kevin P. Sheerin : Article 78 : Serving New York City, Long Island, Manhattan, Bronx, Brooklyn, Queens, Staten Island

City of New York v. Patrolman’s Benevolent Association of the City of New York Inc.

This appeal was brought about to review the decision of the Supreme Court granting a petition and annulling the determination of respondent New York City Board of Collective Bargaining finding that petitioners violated the collective bargaining agreement with respondent unions. Petitioners argue that changing the method of random drug testing from urinalysis to hair analysis by NYPD should be exempt from collective bargaining because it involves the disciplinary authority of the Police Commissioner.

In August 2005, the NYPD stopped using urinalysis as its preferred method of random drug screening and switched to radioimmunoassay of hair (RIAH) without consulting with the unions. The unions protested by filing an improper practice petition with the New York City Office of Collective Bargaining (OCB). The OCB granted the unions’ petition, finding that NYPD violated NYC Collective Bargaining Law §12-306(a)(4) by “unilaterally changing drug testing procedures, a mandatory subject of bargaining.”

The NYPD then brought about an instant Article 78 proceeding to annul this decision as arbitrary and capricious. The Supreme Court granted the petition holding that it was arbitrary and capricious for the OCB to rule that the choice of testing was not related to the Police Commissioner’s disciplinary authority. The Court felt that forcing the Commissioner to negotiate with the police officers that would be subjected to the testing would make his authority appear meaningless.

In this review of the first ruling of the Supreme Court, the Court felt petitioners were seeking to avoid their obligation of collective bargaining by extending the Commissioner’s investigatory authority beyond the context of formal disciplinary proceedings to which it is confined. The reason the limitation of authority exists is to create a balance between the concerns of public employees and the disciplinary authority of the Commissioner.

Accordingly, the Court reversed the decision, denied the petition and reinstated the determination of the Board of Collective Bargaining.

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Transit Authority v. Wong

This Article 75 disciplinary proceeding was brought about by Petitioner, NYC Transit Authority, against Respondent, Sze Tung Wong, alleging incompetence and misconduct and seeking termination. Respondent was accused of being unable to complete tasks appropriate to his position and title of Computer Specialist II, being uncooperative and unwilling to complete assignments in a timely manner.

Respondent’s incompetence charges include being unable to retrieve files from a shared library, failing at completing basic Oracle-related assignments, and not completing an analysis of data error log. He was also accused of misconduct for refusing to participate in a scheduled roll-out, purposefully delaying a work assignment, and being uncooperative and confrontational during the roll-out of a new program.

After reviewing all of the evidence and testimonies, the OATH judge dismissed the misconduct charges but agreed with the allegations of incompetence. She felt that Respondent clearly was not able to perform certain aspects of his job without intensive instruction and supervision. In light of his lengthy tenure with the City, the judge felt that termination was too harsh of a punishment. Instead, she recommended demotion as a more fitting penalty that would give Respondent another chance to prove himself in a less demanding position.

Accordingly, the Judge ordered Respondent demoted from his position of Computer Specialist II to a position better suited to his skills and knowledge.

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Matter of Karl v. NYC Department of Citywide Administrative Services

This Article 78 proceeding was brought about by Petitioner, Brian Karl, to compel New York City Department of Citywide Administrative Services (DCAS) to accept his application for a Master Fire Suppression Piping Contractor (Fire Suppression). Petitioner is a Master Plumber who has been installing fire suppression systems under the supervision of a Licensed Master Plumber for 12 years.

Prior to 1990, licensed Master Plumbers were permitted to install fire suppression systems. Then the law changed so that only a specifically licensed Master Fire Suppression Piping Contractor could work with fire suppression systems. On July 1, 2008, the requirements for a Fire Suppression license changed from requiring 7 years of plumbing experience with at least 3 years in fire suppression experience to requiring 7 years of fire suppression experience within the ten-year period prior to the application.

Petitioner met the requirements of the old law but not the new one and attempted to file an application for the next Fire Suppression license exam, hoping to qualify for the license under the old rules. DCAS declined to accept his application because the 2008 exam had already passed and no date had been set for the 2009 exam. Petitioner then commenced this proceeding in the nature of mandamus to compel the city to accept his application.

Petitioner Karl argued that DCAS had a duty to accept his application when he sought to file it in May 2008. The Court asserts that mandamus relief is not available because there is not “a clear and absolute legal right to the relief sought.” Karl failed to cite any statute or regulation that would support his claim that he had a clear legal right to file an application in May or that DCAS had an absolute duty to accept it at that time. Also, the Rules of the City of New York place the burden of acquiring information concerning exams and new laws solely on the applicant making Karl’s argument that he was entitled to advance notice obsolete.

Accordingly, the Supreme Court denied the petition and dismissed the proceeding.

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Matter of Smith v. New York City Department of Education

This Article 75 case was brought about by Petitioner, Theodore Smith, to challenge the decision and penalty, a one-year suspension without pay. Petitioner was a tenured New York City physical education teacher who had multiple allegations of misconduct, insubordination, incompetence and dereliction. The Arbitrator trying the case found Petitioner guilty of most of the specifications.

Mr. Smith challenged this decision, arguing that virtually every aspect of the disciplinary process violated his due process right to a fair and unpartial hearing. Specifically, the performance of the second Arbitrator, Edelman, who made his decision based solely on the transcript of the proceedings before the first Arbitrator. The first Arbitrator recused himself of the case due to an alleged death threat made by Mr. Smith. This information was then passed along to the second Arbitrator. Arbitrator Edelman did not grant Smith a hearing de novo and based his findings on considerations of credibility without seeing and hearing the witness.

Accordingly, the Supreme Court granted the petition, vacated the decision by Arbitrator Edelman, and remanded the matter for a new hearing.

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Matter of Joseph Grogan v. Gerald Wright

This Article 78 case was brought about to review a determination of the Town of Hempstead Board of Appeals granting Shawn Pobiner with a parking space variance and special permit. The petitioner appealed the judgment of the Supreme Court which denied the petition and dismissed the proceeding.

The Court feels that the Board appropriately weighed the facts set forth by law and the determination to conditionally grant the application was supported by evidence and not arbitrary and capricious. The granting of the application would not be inconsistent with the character of the surrounding neighborhood nor would it adversely affect nearby properties or the environmental conditions in the area.

Accordingly, the Supreme Court ordered the judgment affirmed, with costs.

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Stephen Russell v New York Citywide Administrative Services

This Article 78 case was brought about by Petitioner, Stephen Russel to challenge his termination and to review a determination of the New York City Transit Authority dated April 13, 1989. The New York City Department of Citywide Administrative Services (DCAS) terminated petitioner’s temporary employment as a bridge and tunnel officer because he omitted information concerning a prior misdemeanor on his employment application. The Supreme Court found that DCAS’ decision to terminate the petitioner was not arbitrary and capricious, had a rational basis, and was not made in bad faith. Also, the statute of limitations bars this appeal from being granted.

Accordingly, the Supreme Court ordered the judgment affirmed.

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Veronica Rosario v. Metropolitan College of New York

Petitioner, Veronica Rosario, filed a verified complaint charging her former employer, the Metropolitan College of New York, with discrimination on the basis of her disability. She claimed that the College terminated her employment after discovering that she suffered from bi-polar disorder.

Petitioner voluntarily resigned her position at the College via e-mail during an alleged manic state. The rationale for the Division’s determination was that petitioner did not request special accommodation in connection with her bi-polar condition before, during, or after her hospitalization. Petitioner argued that a reversal of the Division’s decision was warranted due to triable issues of fact.

The Court felt that the Division’s investigation was adequate and permitted petitioner adequate opportunity to present her contentions and it was within the administrative body’s discretion to decide the method(s) to be employed in investigating a claim. There was no evidence that the investigation was abbreviated or one-sided and no basis to annul the determination as arbitrary and capricious.

Accordingly, the Court dismissed petitioner’s Article 78 application and upheld respondent’s “No Probably Cause” Determination as not arbitrary or capricious and having a rational basis.

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