Johnson City Professional Fire Fighters Local 921 v Village of Johnson City

[*1] Johnson City Professional Fire Fighters Local 921 v Village of Johnson City 2010 NY Slip Op 50785(U) [27 Misc 3d 1217(A)] Decided on April 23, 2010 Supreme Court, Broome County Lebous, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 23, 2010
Supreme Court, Broome County

Johnson City Professional Fire Fighters Local 921 and ROBERT DEMPSEY, Petitioners,

against

Village of Johnson City, Respondent.



2010-0298



COUNSEL FOR PETITIONERS:

HINMAN, HOWARD & KATTELL, LLP

BY:TINA FERNANDEZ, ESQ., OF COUNSEL

700 SECURITY MUTUAL BUILDING

BINGHAMTON, NY 13901

COUNSEL FOR RESPONDENT:

COUGHLIN & GERHART, LLP

BY:PAUL J. SWEENEY, ESQ., OF COUNSEL

19 CHENANGO STREET

BINGHAMTON, NY 13901

Ferris D. Lebous, J.

Petitioners filed this Article 78 proceeding seeking, among other things, an order pursuant to CPLR Article 78: (1) enjoining respondent from conducting a disciplinary hearing against petitioner Robert Dempsey noticed for February 1, 2010; (2) compelling respondent to select a hearing officer for said disciplinary hearing pursuant to the terms of the parties' collective bargaining agreement wherein a hearing officer should be selected pursuant to the Public Employment Relations Board rules of procedure; (3) staying the disciplinary hearing against petitioner Dempsey, as well as all proceedings against petitioner Dempsey; and (4) enjoining respondent from extending petitioner Dempsey's period of suspension beyond February 6, 2010.

On January 29, 2010, this court executed an Order to Show Cause with Temporary Restraining Order enjoining respondent from conducting the disciplinary hearing scheduled against petitioner Dempsey on February 1, 2010, as well as enjoining respondent from extending petitioner Dempsey's period of suspension beyond February 6, 2010.[FN1]

Respondent, the Village of Johnson City (hereinafter "the Village"), opposes the petition in all respects and cross-moves to vacate said Order to Show Cause with Temporary Restraining Order or, in the alternative, modify said injunctive relief so as to require the posting of an undertaking.

The court heard oral argument from counsel on the petition and cross-motion on February 19, 2010.

BACKGROUND

A.PRIO R PETITION (DEMPSEY No.1)

The prior petition between these parties warrants review before addressing the merits of the instant petition. Petitioner herein previously brought an Order to Show Cause to stay a disciplinary hearing involving petitioner Dempsey and a fellow firefighter Robert J. Rauschmeier (hereinafter "Dempsey #1"). The disciplinary charge at issue in Dempsey #1 involved alleged acts of insubordination by Mr. Dempsey emanating from a Village Board of Trustees directive issued on February 13, 2009 regarding the use of overtime to supplement staffing (hereinafter "Directive #1)". On May 1, 2009, the Mayor issued a Notice of Discipline against Mr. Dempsey charging him with insubordination for failing to abide by Directive #1 between February 13, 2009 through April 15, 2009. With respect to the disciplinary hearing, the Village unilaterally selected a hearing officer whereupon petitioner sought to stay the disciplinary hearing until the Village agreed to select a hearing officer following PERB procedures as set forth in the parties' CBA. [*2]

With respect to Dempsey #1, this court issued a bench decision on June 5, 2009 in which it applied the two-pronged Liverpool/Watertown test (Matter of Acting Supt. of Schools of Liverpool Cent. School Dist, (United Liverpool Faculty Assn.), 42 NY2d 509 [1977]; Matter of Board of Educ. of Watertown City School Dist. (Watertown Educ. Assn.), 93 NY2d 132 [1999]).[FN2] Briefly, on the first prong, the court found no statutory, constitutional or public policy prohibiting arbitration of the grievance. With respect to the second prong, the court found that the parties had agreed to arbitrate the dispute under the terms of their CBA. More specifically, this court determined that the Village's Rules and Regulations (section 16.1) dictated that disciplinary hearings would be conducted by an impartial hearing officer as agreed upon in the parties' contract which referenced the following provision in the parties' CBA:

[e]ach party agrees to have any dispute arbitrated by the Public Employment Relations Board (PERB). In addition, both parties agree to follow PERB's rules of procedure for dispute resolution, with the exception to Article XV, A6 of this contract.

(CBA, Article XV, "Contract Administration", ¶ A4).

In sum, this court concluded that the PERB rules were incorporated by reference into the parties' CBA dictating the use of the strike list of hearing officers with respect to the disciplinary hearing arising out of the Notice of Discipline dated May 1, 2009. Thus, the court granted the petition and directed the parties to arbitrate the issue.

Thereafter, on June 15, 2009, the Village commenced a separate proceeding to stay said arbitration and the Union cross-moved for an order compelling said arbitration. By Order dated August 12, 2009, the court denied the petitioner and granted the cross-motion.

The Village has filed an appeal to the Third Department from both Orders dated June 18, 2009 and August 12, 2009 which are currently pending.[FN3]

B.CURRENT PETITION ("DEMPSEY #2")

The current petition involves a Notice of Discipline dated January 7, 2010 issued against petitioner Dempsey (hereinafter "Dempsey #2"). The Notice of Discipline dated January 7, 2010 contains six formal charges against Mr. Dempsey which may be categorized as follows:

1.Misconduct (False Statements). The Village alleges that petitioner was not [*3]truthful when asked about the "destruction or loss of several firefighter personnel and/or discipline records"; 2.Misconduct (Loss of Village Property and Official Records). The Village alleges that petitioner "wrongly allowed, permitted, acquiesced to or were complicit in the removal and/or destruction of public property and official business records of the Village of Johnson City, to wit: the official discipline records of approximately fourteen current and former employees of the Fire Department...";3.Insubordination. The Village alleges that petitioner failed to abide by Directive #1, as well as Mayor Hannon's directive dated June 12, 2009 ("Directive #2") regarding the use of overtime to supplement staffing from May 1, 2009 through June 30, 2009.

After receipt of said Notice of Discipline, petitioners demanded a hearing by an impartial hearing officer selected by use of a strike list pursuant to the parties' CBA. Despite said request, the Village unilaterally selected a hearing officer. On January 22, 2010, petitioner filed a grievance regarding the unilateral appointment of a hearing officer contrary to the CBA and Rules and Regulations.

Thereafter, petitioners commenced this special proceeding resulting in this court's issuance of the Order to Show Cause with Temporary Restraining Order dated January 29, 2010 which stayed the disciplinary hearing originally scheduled for February 1, 2010.

DISCUSSION

Initially, the court notes that the Village's first affirmative defense asserts that this court lacks subject matter jurisdiction as there is no Demand for Arbitration pending. CPLR § 7502 (c) permits a party to an arbitration agreement to seek relief "[i]n connection with an arbitration that is pending or that is to be commenced inside or outside this state..." (emphasis added). In any event, petitioners' Demand for Arbitration was ultimately submitted on February 18, 2010 and forms the basis for yet a third petition ("Dempsey #3") not addressed herein. Accordingly, the Village's first affirmative defense is dismissed.

A.Insubordination Charge

Petitioner argues that the insubordination charge is repetitive of the insubordination charge contained in Dempsey #1, albeit for a different time frame, and improperly subjects Mr. Dempsey to double jeopardy and multiple penalties for the same offense. The court disagrees. The new insubordination charge contained in the Notice of Discipline dated January 7, 2010 covers May 1, 2009 through June 30, 2009 which is a separate time frame than the prior Notice of Discipline dated May 1, 2009 which addressed February 13, 2009 to April 15, 2009.

Next, the court finds its earlier analysis under Dempsey #1 equally applicable to

this new insubordination charge. The court will not restate its prior analysis here. Suffice it to [*4]say, however, that under the Liverpool/Watertown analysis the court again finds no statutory, constitutional or public policy prohibiting arbitration of the grievance under the first prong of the analysis. With respect to the second prong, this court again concludes that the PERB rules are incorporated by reference into the parties' CBA dictating the use of a strike list for the selection of the hearing officer with respect to the disciplinary hearing arising out of the Notice of Discipline dated January 7, 2010.[FN4]

Consequently, with respect to the insubordination charge, the court finds that the petition should be granted and the parties should proceed to arbitration.

B.Misconduct Charges

With respect to the remaining misconduct charges involving allegations of "false statements" and "loss of village property and official records", petitioner also argues that the Village's unilateral designation of a hearing officer is improper and seeks a hearing by an impartial hearing officer selected by use of a strike list pursuant to the parties' CBA. The Village argues that the CBA is silent as to disciplinary procedures which thereby allows the Village to rely upon the procedures outlined in Civil Service Law § 75.

By way of background, under the so-called "Prior Rules" a firefighter subject to disciplinary charges was entitled to a hearing "held before the Governing Body or its designee(s)" (Petition, Ex A, pp 27-28). In 1996, the so-called "Current Rules" were enacted and included a provision under Article XVI (Procedures for Disciplinary Action) in section 16.1 which states in part, that "[u]pon the filing of such charges, the Governing Body will set a date, time, and place for a hearing by an impartial hearing officer as agreed upon in the contract between the Village Board and the association representing the Officers and Firefighters of the Department" (Petition, Ex B, p 30). In reply, petitioners argue that the language in the Current Rules tying the selection of an impartial hearing officer to the procedures contained in the CBA thereby eliminated the Village's right, under the Prior Rules, to unilaterally designate a hearing officer.

As previously held in Dempsey #1, this court continues to view the Current Rules, section 16.1, as dictating that disciplinary hearings will be conducted by an impartial hearing officer as agreed upon in the parties' contract which is a reference to the following provision in the parties' CBA:

[e]ach party agrees to have any dispute arbitrated by the Public Employment Relations Board (PERB). In addition, both parties agree to follow PERB's rules of procedure for dispute resolution, with the exception to Article XV, A6 of this contract.

(Petition, Ex 3, CBA, Article XV, "Contract Administration", ¶ A4; emphasis added). [*5]

In view of the foregoing, this court concludes that the PERB rules are incorporated by reference into the parties' CBA thereby dictating the use of a strike list for the selection of a hearing officer with respect to the disciplinary hearing arising out of the Notice of Discipline dated January 7, 2010.

C.Management Capacity Issue

Notwithstanding the foregoing, the Village argues that the CBA does not apply to petitioner Dempsey because he was acting in a management capacity at the time of his alleged misconduct. Petitioners argue that this court previously decided the management issue as part of Dempsey #1 so the Village is barred by collateral estoppel and res judicata from litigating that issue again. The court notes that while it did consider the management issue in reaching its determination in Dempsey #1, to the extent that the analysis was not set forth on the record the court will do so here.

It is undisputed that the Village recognizes three management positions within the Department, namely Chief (a management position), the Assistant Fire Chief (a Union position), and a Fire Marshal (a Union position) (Current Rules, Article IV). It is also undisputed that in May 2008, Mr. Dempsey was the Fire Marshal, the Chief position was vacant, and the Assistant Fire Chief had retired and the position was eliminated by the Village. It is further undisputed that Mr. Dempsey had been formally or informally fulfilling the roles of Fire Marshal and Chief when the Village Board ultimately passed a resolution appointing Dempsey as Acting Fire Chief.

In this court's view, while Mr. Demspsey had been fulfilling the role of Chief, he never resigned or was removed as the Fire Marshal or a member of the Union during the pertinent times nor did the Board resolution revoke his authority as Fire Marshal. Additionally, as petitioner notes, the Village continued to withhold Union dues from his paycheck throughout the relevant time periods. Moreover, the court notes that the Notice of Discipline dated January 7, 2010 is addressed to Mr. Dempsey in his capacity as Fire Marshal. Also, as noted by petitioner, to the extent some of the charges relate to August 2009, Mr. Dempsey was no longer Acting Chief at that time. Consequently, the court finds the CBA is applicable to Mr. Dempsey. In any event, the standing issue is for the arbitrators to decide (Matter of Town of Wallkill Unit of Orange County Ch., Civ. Serv. Empls. Assn. (Town of Wallkill), 52 AD2d 586 [2nd Dept 1976]).

D.Undertaking/Pay Pending Determination

Civil Service Law § 75 (3) states, in part, that "[p]ending the hearing and determination of charges of incompetency or misconduct, the officer or employee against whom such charges have been preferred may be suspended without pay for a period not exceeding thirty days." Petitioner requested - and received - an order preventing the Village from extending Dempsey's suspension beyond February 6, 2010, because the Village had taken the position that an extension is proper when a hearing is delayed by virtue of a grievance, demand for arbitration or court proceeding regarding the selection of the hearing officer.

The court finds no authority requiring an undertaking given the circumstances presented [*6]here. While petitioners initially characterized their relief as an "injunction" - which would trigger the CPLR Article 63 requirements including undertakings - the court agrees that the relief sought here is more in the nature of a restoration of salary and benefits (Levine v New York City Tr. Auth., 70 AD2d 900 [2nd Dept 1979), affd 49 NY2d 747 [1980]; Matter of DiMattina v Town of Huntington, 233 AD2d 393 [2nd Dept 1996]).[FN5]

Moreover, the court rejects the Village's argument that an undertaking is warranted because petitioners are the cause for the delay in the scheduling of a hearing by filing a grievance, a demand for arbitration and this court proceeding regarding the selection of the hearing officer. Quite simply, the court will not punish petitioners for seeking to enforce rights believed to be guaranteed under the CBA. This is not a case where petitioners have engaged in flagrantly dilatory delay tactics such as making themselves unavailable for a hearing. Rather, petitioners simply are seeking, by all lawful means, to enforce what they perceive to be their contractual rights.

E.Bill of Particulars

On January 22, 2010, petitioners served a Demand for a Bill of Particulars regarding the Notice of Discipline dated January 7, 2010 seeking clarification as to the charges against Mr. Dempsey. The Village represents it stands ready to respond, but did not do so in view of the stay contained in this court's TRO dated January 29, 2010 (Answer, ¶ 17). The court will direct the Village to respond within twenty (20) days of the date of this Decision.

CONCLUSION

Accordingly, it hereby is ORDERED and ADJUDGED that the petition is granted as follows: (a)the Village's determination on January 21, 2010 unilaterally designating a hearing officer is hereby reversed, annulled, and set aside;(b)the Village is directed to comply with the PERB hearing officer selection procedures as set forth in the Current Rules and CBA;(c)staying the pending administrative hearing and all proceedings against petitioner until said procedure is followed and/or arbitration is had between the parties hereto with regard to said issue;[*7](d)enjoining the Village from extending Dempsey's period of suspension without prejudice beyond February 6, 2010; and

(e)the Village's cross-motion is denied.

This constitutes the decision, order and judgment of the court.

Dated:April 23, 2010

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court Footnotes

Footnote 1:Prior to executing said Order to Show Cause on January 29, 2010, the court conducted a conference with Paul Sheppard, Esq. appearing in chambers for petitioner and Paul Sweeney, Esq. appearing by telephone for respondent. Mr. Sweeney graciously agreed to participate in the conference despite being unable to examine the papers in detail prior thereto.

Footnote 2:A transcript of the court's bench decision is annexed as Petitioner's Exhibit H. The court then issued a subsequent Order dated June 18, 2009 which is annexed as Petitioner's Exhibit I.

Footnote 3:While the appeals on Dempsey #1 are pending, the Third Department recently issued a Memorandum & Order dated April 8, 2010 in related matters (In the Matter of the Arbitration between Johnson City Professional Firefighters Local 921 et al. v Village of Johnson City; and In the Matter of the Arbitration between Village of Johnson City v Johnson City Firefighters Assn, Local 921 IAFF, et al.).

Footnote 4:This analysis was upheld by the Third Department in the Memorandum & Order dated April 8, 2010 in related matters (In the Matter of the Arbitration between Johnson City Professional Firefighters Local 921 et al. v Village of Johnson City; and In the Matter of the Arbitration between Village of Johnson City v Johnson City Firefighters Assn, Local 921 IAFF, et al.).

Footnote 5:Parenthetically, the Village argues that "the Village -which has huge fiscal concerns of record-should not be forced to subsidize Dempsey and his Union while the issue of the selection of a hearing officer in a Section 75 matter is litigated and, if needed, arbitrated" (Hannon Affidavit ¶ 13).While the Village may well be "forced to subsidize" the Union while these matters wind their way through the courts and arbitration process, the blame for the litigious history and nature of these parties rests equally on the shoulders of both parties. In the long run, the court suspects neither side will be able to claim "victory", since these parties will once again be sitting across the table from one another negotiating a new agreement. In the meantime, however, this court is left with no alternative but to enforce the agreements at issue and the applicable law.