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Negotiated disciplinary procedures

Negotiated disciplinary procedures
Fortune v Div. of State Police, App. Div., 3rd Dept., 293 A.D.2d 154

The issue in the Fortune case: May a collective bargaining disciplinary procedure supersede statutory disciplinary due process requirements such as those set out in Section 75 of the Civil Service Law or Section 3020-a of the Education Law? In a word: yes!

The Appellate Division affirmed the principle that an alternative disciplinary procedure negotiated pursuant to the Taylor Law constitutes collateral estoppel to any claim by an employee that he or she is entitled to any disciplinary due process rights otherwise avail­able to an individual under State law.

Roger A. Fortune was given a letter of censure by the Superintendent of State Police after being found to have discharged his weapon and thus "endangered the public and fellow officers" contrary to State Police procedures.

Fortune sued, contending that the State Police regulations violated Section 75 of the Civil Service Law insofar as they permitted the sanction of censure to be imposed on a Trooper without complying with administrative due process requirements.

The Appellate Division rejected Fortune's argument, noting that "the applicable collec­tive bargaining agreement between the union representing [Fortune] and the State provides that management may `discipline or discharge members in accordance with the Rules and Regulations of the Division.'"

Executive Law Section 215 [3] provides that the Superintendent may establish rules and regulations for the discipline and control of the State Police and provides that permanent State Police appointees may be removed by Superintendent only after a hear­ing.

The decision points out that "Both State and Federal Courts have recognized that consti­tutional protections afforded public employees, including statutory due process rights, may be waived by unions acting on their behalf through entering into collective bargain­ing agreements with public employers," citing the landmark decision by the Court of Appeals in Antinore v State of New York, 40 NY2d 921.

As the Police Benevolent Association of the New York State Troopers and the Division of State Police had negotiated an alternate disciplinary procedure in lieu of Section 75, Fortune conceded that he was not entitled to rely on the provisions of Section 75 with respect to any alleged violation of his statutory right to administrative due process.

Here the State Police regulations do not provide for a hearing with respect to issuing a letter of censure by the Superintendent. Accordingly, Fortune did not have any right to a pre-determination hearing under the terms of the collective bargaining agreement in cases where the only penalty imposed was a letter of censure.

In addition, the Appellate Division noted that Supreme Court had dismissed Fortune's petition on the merits, finding that the Superintendent's had a rational basis and his action was neither not arbitrary nor capricious. Further, said the court, Fortune was not denied due process as he was permitted to refute the allegations made against him by submitting response letters to be placed in his file.

Full post as published by New York Public Personnel Law on May 30, 2008 (boomark / email).