Labor & Employment Law

Failure to exhaust administrative remedy bars Article 78 action

By Harvey Randall, Esq.

Failure to exhaust administrative remedy bars Article 78 action
Matter of Civil Serv. Employees Assn. Inc., Local 1000 AFSCME AFL-CIO v Port Wash. Union Free School Dist., 2007 NY Slip Op 27168, Supreme Court, Nassau County, LaMarca, J.

The Washington Union Free School District assigned a number of its groundskeepers to remove trash and debris from a small strip of private property bordering the Paul D. Schreiber High School. Students had left the debris there.[1]

CSEA, the collective bargaining representative of the grounds personnel involved in these tasks, sued the District seeking a court order directing it to discontinue assigning unit personnel to the task. The union alleged that the use of public employees for this purpose ?is arbitrary and capricious and violative of the New York State Constitution Article VIII, Section 1 which prohibits gifts of public funds for private use.?[2] The District asked the court to dismiss CSEA?s petition because it had not ?exhausted its administrative remedy? as it had not filed a grievance challenging the district?s action.

Supreme Court Judge William A. LaMarca said that the doctrine of the ?exhaustion of administrative remedies? does not apply where (1) an agency?s action is challenged as either unconstitutional or wholly beyond its grant of power, or (2) where resort to an administrative remedy would be futile.

After holding that CSEA?s constitutional argument ?is untenable,? Judge LaMarca said that inasmuch as CSEA neither pursued the grievance procedures set forth in the collective bargaining agreement nor proved that filing such a grievance would have been futile, its Article 78 proceeding had to be dismissed.

In the opinion of the court, using the District?s groundskeepers during their regular work hours to collect litter generated by students on property adjacent to school grounds, cannot be characterized as a gift of public resources to private individuals. To the extent that the CSEA argued that using unit members to clean private property violates its Collective Bargaining Agreement (CBA) with the District, the court said that CSEA had the administrative remedy of filing a contract grievance challenging the District?s action.

Judge LaMarca pointed out that CSEA?s Article 78 petition alleged that the CAB provided that:

a) work assignments are restricted to school premises;

b) the requirement that groundskeepers clean private property presents a health and safety risk to them;

c) ?the parties did not contemplate nor did they negotiate the terms and conditions of employment in the event unit bargaining members were directed to work on private property or property other than school property? and

d) the school district?s decision requiring groundskeepers clean or maintain private property is arbitrary and capricious.

Such issues, said the court, are within the ambit of the CBA. By failing to pursue the CBA?s grievance procedure to address its complaint, ?CSEA failed to exhaust its administrative remedies that, in the absence of any of the valid exceptions noted earlier, requires the dismissal of its Article 78 petition.?

Full post as published by New York Public Personnel Law on March 03, 2008 (boomark / email).