2.130 - 1. Administrative And Arbitral Forums

• Jurisdiction: New York

1. Administrative and Arbitral Forums

When a public employee is being subjected to disciplinary action under the procedures of Civil Service Law § 75 or under the disciplinary procedures of a collective bargaining agreement, the sole forum to raise the whistle-blower defense under the statute is during a disciplinary arbitration or a Civil Service Law § 75 hearing. Pursuant to Civil Service Law § 75-b(3)(a), disciplinary arbitrators and Civil Service Law § 75 hearing officers are mandated to rule on the statutory defense in the arbitration award or hearing officer decision.¹⁵³⁸ The failure of a disciplinary hearing officer to consider a Civil Service Law § 75-b defense constitutes grounds for setting aside a penalty but the alleged failure must be alleged in the Article 78 petition.¹⁵³⁹

If a collective bargaining agreement contains a provision prohibiting the employer from taking adverse personnel actions and a provision with final and binding arbitration, a public employee must challenge retaliatory personnel actions through the grievance arbitration mechanism pursuant to Civil Service Law § 75-b(3)(b).¹⁵⁴⁰ Arbitrators selected to determine a grievance under Civil Service Law § 75-b are statutorily mandated to rule on the merits of the statutory claim. The failure of a disciplinary arbitrator to fulfill his or her statutory responsibility to render a separate determination on an employee’s Civil Service Law § 75-b defense is grounds for judicial vacatur of the arbitration award.¹⁵⁴¹ Where the record demonstrates specific incidents of misconduct, an arbitration award rejecting a Civil Service § 75-b will be sustained.¹⁵⁴²

In the disciplinary context, if the arbitrator or Civil Service Law § 75 hearing officer determines that the disciplinary action or proposed disciplinary action was based solely on conduct protected by Civil Service Law § 75-b, the arbitrator or hearing officer is mandated to dismiss or recommend dismissal of the disciplinary process and if appropriate reinstate the employee with back wages.¹⁵⁴³ In addition, in the disciplinary arbitration context, the arbitrator is authorized to “take other appropriate action as is permitted in the collectively negotiated agreement.”¹⁵⁴⁴ Similarly, when determining a non-disciplinary grievance asserting a violation of Civil Service Law § 75-b, an arbitrator is granted the authority to “take such action to remedy the violation as is permitted by the collectively negotiated agreement.”¹⁵⁴⁵

In In re Obot,¹...