Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, November 24, 2012

Is Nepotism Good or Bad??

My guess is that just about everyone has an opinion about whether Nepotism is good or bad. Now, a psychologist is going to undertake a study in order to try and answer this question. The study which is taking place is reported in Psychology Today and is available here.

Hat Tip: Workplace Prof Blog

Mitchell H. Rubinstein 

November 24, 2012 in Employment Law | Permalink | Comments (1)

Thursday, November 22, 2012

PERB’s policy of initially deferring to a contract abitiration procedure between the parties to resolve an “alleged improper practice” challenged

Westchester County Dept. of Pub. Safety Police Benevolent Assn., Inc. v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 07178, Appellate Division, Third Department
The New York State Public Employment Relations Board’s [PERB] “deferral policy” in cases alleging "improper practices" was challenged by Westchester County. The County contended that the policy constituted “an abandonment of the exclusive, nondelegable jurisdiction over improper practice charges granted to PERB by Civil Service Law §205(5)(d).”
Essentially, PERB’s policy utilized an agreed-upon binding arbitration procedure set out in a collective bargaining agreement between the parties to resolve a “claimed improper practice” before it would consider the allegation.
The union had filed an improper practice charge with PERB alleging that the County had refused to negotiate an issue concerning the "maintenance of standards" clause in the governing collective bargaining agreement in violation of Civil Service Law §209-a(1)(d).
When PERB applied its deferral policy and conditionally dismissed the charge pending the outcome of binding arbitration conducted pursuant to the negotiated grievance procedure over Westchester's objections, Westchester filed a petition in Supreme Court appealing its ruling.
Supreme Court dismissed the County’s petition, agreeing with PERB that the charge raised an issue covered by the CBA and thus provided a reasonable basis for PERB to apply its policy of deferring the matter to binding arbitration. The Appellate Division agreed, noting that PERB had earlier ruled on this issue, which decision was affirmed in Matter of Westchester County Police Officer's Benevolent Assn. v Public Empl. Relations Bd., 301 AD2d 850. This, said the Appellate Division, gave the union “a reasonably arguable right to submit the conduct alleged in the improper practice charge to binding arbitration.”
The Appellate Division, in sustaining the lower court’s ruling and dismissed the County’s appeal, explained:
1. The application of the policy resulted in a conditional dismissal, meaning that the improper practice charge remains subject to being reopened before PERB after the conclusion of the arbitration process; and
2. The courts have generally deferred to PERB's interpretation of its jurisdiction under Civil Service Law §205(5)(d), citing Matter of Roma v Ruffo, 92 NY2d 489.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

November 22, 2012 in Public Sector Labor Law | Permalink | Comments (0)

Tuesday, November 20, 2012

Law Review Article On Grammar?? What is Next

For those of you who like to correct my grammar, I am pleased to point you to a law review article which takes a contemporary look at the use of Strunk and White in the legal profession. That article is available here.

Hat Tip: Legal Writing Prof Blog

Mitchell H. Rubinstein 

November 20, 2012 in Law Review Articles | Permalink | Comments (0)

Harvard Law Review Annual Supreme Court Issue

Harvard Law Review's annual Supreme Court issue is available online here

Hat Tip:  How Appealing

November 20, 2012 in Law Review Articles | Permalink | Comments (0)

Monday, November 19, 2012

A two prong test is applied in determining if a public official is entitled to "qualfied immunity" when he or she is sued

Coollick v. Hughes, USCA, 2nd Circuit, 10-5248-cv
The US Circuit Court of Appeals ruled that the Superintendent of the Connecticut Technical High School System was entitled to qualified immunity in a §1983 action in which she was alleged to have deprived the plaintiff of “sufficient notice” before the elimination of her position as a guidance coordinator at a high school.
The Circuit Court of Appeals ruled that in this instance the Superintendent’s conduct, “even when viewed in the light most favorable to [the plaintiff], did not violate the plaintiff’s clearly established rights."
The court explained that “Qualified immunity protects federal and state officials from money damages and 'unnecessary and burdensome discovery or trial proceedings.'” It, however, is an affirmative defense and the federal or state officials being sued “have the burden of raising in their answer and establishing at trial or on a motion for summary judgment.”
In determining if an official is entitled to a claimed right to “qualified immunity” the courts apply the two-prong test set out in Pearson v. Callahan, 129 S. Ct. 808.
The first prong addresses the question of whether the petitioner “stated a cause of action.”
The second prong of the test asks did the “[g]overnment official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he [or she] is doing violates that right.”
In this instance the Circuit Court concluded that the Superintendent’s action “were not objectively unreasonable in light of the law that existed at the time of her conduct.”
Further, the Second Circuit said that it has held that when a plaintiff is subject to a collective bargaining agreement that provides adequate post-deprivation procedures, “such post-deprivation procedures . . . are sufficient to satisfy due process” citing Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206
The plaintiff , said the court, “utilized the grievance procedures provided for in the collective bargaining agreement and received a favorable decision" restoring her to the status she had prior to the Superintendent’s actions and awarding her back pay and benefits.*
In any event, the court held that there was nothing “objectively illegal, in a constitutional sense,” in the Superintendent’s action and although she may have been incorrect in deciding that the plaintiff did not have certain rights under the collective bargaining agreement, the plaintiff was able to avoid any harm through the very grievance procedures in place to remedy any such deprivation.
Deciding that there was no constitutional bright lines transgressed by the Superintendent in the course of her handling the plaintiff’s termination, the Circuit Court ruled that the Superintendent was entitled to qualified immunity.
* The Circuit Court observed notwithstanding her prevailing in the grievance she filed, the plaintiff “persists with this lawsuit for additional recovery of punitive damages and reimbursement of attorneys’ fees and costs.”
The decision is posted on the Internet at:

Reprinted by permission New York Public Personnel Law

Mitchell H. Rubinstein

November 19, 2012 in Constitutional Law | Permalink | Comments (0)

Sunday, November 18, 2012

Employment Contracts—Discharge—Probationary Employee


Coburn v. Regents of Univ. of Cal.,  ___F.3d____(10th Cir. 10/30/12), is an interesting decision. The 10th Circuit holds that a university employee fired three weeks after he was hired for sexual comments and racial and ethnic slurs could not advance his breach of an implied employment contract claim under New Mexico law. The court concluded that the university reserved the right to discharge probationary employees at any time.

Mitchell H. Rubinstein

November 18, 2012 in Employment-At-Will & Exceptions | Permalink | Comments (0)