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The New York City Metropolitan Transportation Authority is seeking applicants for the position of Deputy General Counsel – Employment.
For more information, go to http://publicpersonnellaw.blogspot.com/2014/07/the-new-york-city-metropolitan.html
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Wednesday, July 30, 2014

Employer entitled to reimbursement of the cost of post-employment health insurance benefits it erroneously paid on behalf of a former employee


Employer entitled to reimbursement of the cost of post-employment health insurance benefits it erroneously paid on behalf of a former employee
2014 NY Slip Op 04203, Appellate Division, Second Department

In this action a former employee [Plaintiff] of a municipal entity [Municipality] filed a petition in the nature of mandamus to compel her former employer to provide her with post-employment health insurance benefits.

Supreme Court granted the Municipality’s motion summary judgment dismissing [1] Plaintiff’s petition for a writ of mandamus and [2] her action alleging breach of contract.

The court then granted the Municipality’s counterclaim for the reimbursement of the cost of health insurance coverage that it provided to Plaintiff since December 31, 2009, a sum in the amount of $19,866.57. The Appellate Division affirmed the Supreme Court rulings, with costs.

The Appellate Division said that the Municipality had established its entitlement to judgment as a matter of law with respect to dismissing Plaintiff’s cause of action alleging breach of contract. The Court explaining that the municipality’s resolution providing employees of the employer with post-employment health insurance benefits was limited to “employees who are retired, eligible to retire, or have reached retirement age.”

The court said that the Municipality had established a prima facie case that Plaintiff was not a "retiree," as defined in the applicable regulations, 4 NYCRR 73.1[d], [e], [f]; 73.2[a][3][iv].  Plaintiff, on the other hand, said the court, failed to raise a triable issue of fact as to whether she was a retiree or the existence of any contractual right to the Municipality’s providing her with post-employment health insurance benefits.

Further, said the Appellate Division, citing Parkview Assoc. v City of New York, 71 NY2d 274, although the Municipality may have performed an act contrary to law or made an administrative error in commencing to pay post-employment health insurance benefits on behalf of Plaintiff, as a municipal entity:

1. The Municipality cannot be estopped from denying the existence of a contractual obligation to continue making those payments and

2. The Municipality cannot be held to have ratified any such contractual obligation.

As the Municipality had also made a prima facie showing of its entitlement to judgment as a matter of law on its counterclaim for reimbursement of the amount it erroneously paid for Petitioner’s post-employment health insurance coverage and Plaintiff failed to raise a triable issue of fact, the Appellate Division ruled that the granting of summary judgment in favor of the Municipality on its counterclaim was also proper.

Tuesday, July 29, 2014

In seeking to vacate an arbitration award, the moving party must set out the grounds relied upon for setting the award aside


In seeking to vacate an arbitration award, the moving party must set out the grounds relied upon for setting the award aside
2014 NY Slip Op 04451, Appellate Division, First Department

The arbitrator had found the employee [Petitioner] guilty of certain disciplinary charges and had imposed the penalty of a thirty-day suspension without pay. A few months later Petitioner was again served with a notice of discipline and the arbitrator, finding Petitioner guilty of misconduct,  terminated his employmentt.

Petitioner appealed. Supreme Court dismissed his Article 75 petitions seeking to vacate the arbitration awards, which decisions the Appellate Division affirmed.

The Appellate Division explained that Petitioner failed to argue, “let alone set forth, any of the grounds for setting aside an arbitration award.” Further, said the court, Petitioner did not allege an statutory basis for vacating the award such as corruption, fraud or misconduct in procuring the award or partiality of the arbitrators, nor did he allege that the arbitrators exceeded their power, failed to follow the procedure set forth in CPLR Article 75, or that the award is irrational or violates public policy."

In the view of the Appellate Division, “Petitioners' allegations amount to nothing more than a claim that the arbitrators made errors of fact or law which, even if true, does not warrant vacatur of the awards.”

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 25, 2014


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending July 25, 2014
Click on text highlighted in color  to access the full report
 
Town of Berne – Procurement (Albany County)
The town board has adopted comprehensive procurement policies and procedures that provide guidance as to when items must be competitively bid and when written or verbal quotes should be obtained for purchases not required to be bid. Town officials review and update these policies annually to ensure they provide guidance for officials and employees to follow when bidding is not required by law.


Town of Broadalbin – Leave Accruals (Fulton County)
The town has not established a system to ensure that leave accruals earned and used by highway department employees are properly accounted for. Employees maintain their own leave records, including leave balances and recording leave time used and earned, without oversight and independent verification by town officials.


Lakeview Public Library – Tuition Reimbursement and Procurement (Nassau County)
The library did not use competitive methods when procuring goods and services that were not subject to competitive bidding. The board’s adopted purchasing policy did not require officials to solicit competitive proposals prior to engaging the services of professional service providers. In addition, the board did not properly authorize all tuition reimbursements paid to the director.


Village of North Syracuse – Claims Audit (Onondaga County)
The board needs to improve internal controls over the claims audit process. Although the clerk-treasurer reviews each individual claim on the abstracts, the board reviews and approves the abstracts without reviewing the actual claims.


Town of Thurston – Financial Condition (Steuben County)
The board did not adopt structurally balanced budgets or consistently monitor the budget. As a result, the general fund reported a deficit unexpended fund balance of $18,343 on Dec. 31, 2012. Although fund balance increased to approximately $9,000 in 2013, this amount is insufficient to cover unexpected expenses.


Town of Willsboro – Internal Controls Over Selected Financial Operations (Essex County)
The town clerk did not maintain adequate, accurate and complete records and reports. In addition, collections for clerk fees and real property taxes were not physically secured prior to deposit, were not deposited timely and intact and were not remitted to the appropriate party timely or in the appropriate amounts. Auditors also found that the board did not audit the records of the clerk as required.


York Fire Department – Controls Over Financial Activities (Livingston County)
The board did not adopt financial policies and procedures addressing cash receipts and disbursements, procurement, or claims processing and review, and has not adopted a written code of ethics. Further, the board did not require the treasurer to provide it with adequate monthly reports that included receipt, asset and liability information.
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A two-month suspension without pay rather than termination ruled the appropriate penalty in view of employee's 29 years of service and her previously unblemished work record


A two-month suspension without pay rather than termination ruled the appropriate penalty in view of employee's 29 years of service and her previously unblemished work record
2014 NY Slip Op 04660, Appellate Division, Fourth Department

A senior account clerk-typist [Petitioner] was charged with incompetence and misconduct in the performance of her duties. The hearing officer sustained one of the three specifications of incompetence and one of the two specifications of misconduct and recommended that Petitioner be placed on “an employee improvement plan” in lieu of discipline. The appointing authority adopted the findings of the hearing officer and sustained an additional specification of incompetence. It then imposed the penalty of termination and dismissed the Petitioner.

After reviewing all of the disciplinary charges and specifications filed against the employee, the Appellate Division said that it was “left with two specifications of incompetence, i.e., failure to bill for services in a timely manner and failure to deposit cash and checks in a timely manner.”

The Appellate Division said that the appointing authority acknowledged that Petitioner did not misuse or misappropriate any of the funds at issue, and there was no evidence that the employer had lost revenue or otherwise suffered financial harm as a result of Petitioner's delay in processing invoices or preparing funds for deposit. Further, said the court, the record showed that there were several factors beyond Petitioner's control that contributed to the delays and the appointing authority conceded that there were no rules, regulations, or written policies with respect to the timing of invoices or deposits, and Petitioner's direct supervisor testified that he never directed Petitioner to send out invoices or prepare funds for deposit within a particular period of time.*

The court noted that although there was a six-month period during which Petitioner failed to prepare any invoices, the record reflects that Petitioner was ill and intermittently absent from work during several of those months, that no one performed Petitioner's duties during her absence, and that several of Petitioner's completed invoices were inadvertently deleted by the employer’s informational technology department.

Accordingly, the Appellate Division “unanimously modified on the law” the appointing officer’s determination part of the determination and vacated the penalty of termination imposed by the appointing authority.

The court concluded that the penalty of termination is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness," citing Matter of Pell, 34 NY2d 222.  233; see Johnson, 281 AD2d at 895). It then explained that "[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally.”

In our view, said the Appellate Division, “the penalty of termination is particularly unfair in light of Petitioner's long service to the City and her previously unblemished work record,” noting that prior to the initiation of this disciplinary action Petitioner had worked for the City for 29 years and had never been disciplined, threatened with discipline, or counseled with respect to her job performance.

Under the circumstances, the Appellate Division concluded that "the maximum penalty supported by the record" is a two-month period of suspension without pay.

* The court noted that although there was a six-month period during which Petitioner failed to prepare any invoices, the record reflects that Petitioner was ill and intermittently absent from work during several of those months, that no one performed Petitioner's duties during her absence, and that several of Petitioner's completed invoices were inadvertently deleted by the employer’s informational technology department.

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A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html
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Monday, July 28, 2014

Insubordination, neglect of duty, and unbecoming conduct


Insubordination, neglect of duty, and unbecoming conduct
OATH Index No. 1372/14

A respiratory therapist [RT] was charged with insubordination, neglect of duty, and unbecoming conduct. OATH Administrative Law Judge Faye Lewis found that RT neglected his duty by failing to answer multiple telephone calls from the emergency room relating to a trauma patient and failing to respond to the emergency room in a timely manner. 

However, the appointing authority did not establish that RT was insubordinate or that he engaged in unbecoming conduct by initiating an argument with staff. Penalty recommended was a 60-day suspension without pay.

The decision is posted on the Internet at: http://archive.citylaw.org/oath/11_Cases/14-1372.pdf

Failure to name necessary parties required the dismissal of an appeal to the Commissioner of Education


Failure to name necessary parties required the dismissal of an appeal to the Commissioner of Education
Decisions of the Commissioner of Education, Decision No. 16,607

This appeal concerned the school district’s alleged failure to recall an individual whose name appeared on the relevant preferred eligible list who claimed to have greater seniority that those reinstated from the preferred list.

It is instructive in that it again illustrates the critical need to join necessary parties, a party whose rights would be adversely affected by a determination of an appeal in favor of a Petitioner.

Further, joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

In this instance, said the Commissioner, if the Petitioner’s request for relief were granted, the rights of the three duly certified teachers earlier appointed, each of whom allegedly had less seniority in the relevant tenure area than Petitioner, could be adversely affected, thus making those teachers necessary parties to this action.

As Petitioner failed to name and serve these individuals, the Commissioner dismissed Petitioner’s appeal.

The Commissioner also noted that that Petitioner had named the superintendent in the petition. However, there was no evidence in the record that the superintendent was personally served and thus Petitioner’s claims against the superintendent were also be dismissed for lack of personal service.

As to Petitioner request attorney fees and reimbursement for the costs and disbursements of this proceeding, the Commissioner noted that there was no statutory authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310.

A court will confirm an arbitration award unless it finds the award irrational or violates public policy, or exceeds a specifically enumerated limitation on the arbitrator's power


A court will confirm an arbitration award unless it finds the award irrational or it violates strong public policy, or it exceeds a specifically enumerated limitation on the arbitrator's power
Professional Firefighters Assn. of Nassau County v Village of Garden City, 2014 NY Slip Op 05343, Appellate Division, Second Department

The Village Garden City assigned volunteer firefighters to operated “first line” equipment rather than to paid firefighters represented by the Professional Firefighters Association of Nassau County. The Association grieved the Village’s action and the arbitrator held that the Village had violated the relevant collective bargaining agreement by assigning the operation of first line equipment to volunteer firefighters.

When the Association filed an Article 75 petition seeking to confirm the award, the Village moved to vacate the arbitrator’s decision. Supreme Court vacated the arbitrator’s award and the Association appealed.

The Appellate Division reversed the Supreme Court order on the law, with costs, confirming the arbitration award is granted. The court explained that arbitration decisions are entitled to deference from the courts and will not be disturbed unless they are irrational, violate public policy, or exceed a specifically enumerated limitation on the arbitrator's power.

Rejecting the Village’s argument to the contrary, the Appellate Division said that “challenged arbitration award did not exceed a specifically enumerated limitation on the arbitrator's power.’  Rather, said the court, the arbitrator acted within her broad authority under the collective bargaining agreement by relying upon the prior agreements and past practices of the parties in interpreting the provisions of the agreement, and in determining that the Village violated it by assigning the operation of first line equipment to volunteer firefighters rather than to paid firefighters represented by the [Association].

As the arbitrator's award was neither irrational nor violative of public policy, the Appellate Division held that Supreme Court erred in denying that branch of the petition which was to confirm the award and in granting the Village's motion to vacate it.

Friday, July 25, 2014

The New York City Metropolitan Transportation Authority is seeking applicants for the position of Deputy General Counsel – Employment


The New York City Metropolitan Transportation Authority is seeking applicants for the position of Deputy General Counsel – Employment

The Deputy General Counsel – Employment reports to the General Counsel and serves as the Metropolitan Transportation Authority’s senior in-house employment law expert.

Duties include managing the employment functions of the MTA Headquarters Legal Department; representing the MTA in litigation and administrative matters before federal and state courts and various administrative agencies, including the Equal Employment Opportunity Commission, State Division of Human Rights and State Public Employment Relations Board, providing day-to-day legal advice and counsel to MTA's Human Resources and Labor Relations Departments and Department of Diversity and Civil Rights regarding employment, employment discrimination and labor issues and for developing policies and procedures in those areas.

Other duties include:

■ Coordinating with the MTA's subsidiary and affiliated agencies' law departments, equal employment opportunity specialists and human resources managers concerning certain all-agency policies and initiatives in the labor and employment areas;

■ Advising MTA and its agencies on issues involving Title VI, environmental justice, equal employment opportunity, personal privacy protections (including HIPAA), MTA's disadvantaged, minority and women-owned business enterprise ("DMWBE") programs, Paratransit and ADA station accessibility matters;

■ Coordinating reporting by the MTA and its agencies to MTA's Board and to federal and state regulatory authorities, including the Federal Transit Administration concerning Title VI, equal employment opportunity and MTA's DMWBE programs;

■ Advising MTA management concerning the legal risks related to employment practices to protect MTA's interests; and

■ Supporting the General Counsel in the performance of his accountabilities by providing him with legal and policy advice representing the MTA in complex and sensitive special assignments as requested by the General Counsel..

The Deputy General Counsel – Employment will be expected to provide guidance, advice, and general supervision to assistant and, or, associate counsels.

Additional information concerning this position is posted on MTA's Internet Careers page.

Interested attorneys may submit their “online application” form by clicking on the “APPLY NOW” button from either the MTA’s CAREERS page or from the JOB DESCRIPTION page, which can be found at:


under MTA Headquarters jobs. 

If you have previously applied on line for other MTA positions, enter your User Name and Password.  If it is your first registration, click on the CLICK HERE TO REGISTER hyperlink and enter a User Name and Password; then click on the REGISTER button.
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Termination during a disciplinary probation period

Termination during a disciplinary probation period
2014 NY Slip Op 05347, Appellate Division, Second Department

An employee [Petitioner] filed an Article 78 petition challenging the appointing authority's summarily terminating him from his position.

Earlier Petitioner, a Safety and Security Officer, was served with a notice of discipline alleging that he was guilty of misconduct when, among other things, he failed to properly activate the emergency medical system. Petitioner and the appointing authority then entered into a disciplinary settlement agreement that provided Petitioner would serve a one-year disciplinary evaluation period during which time the appointing authority could terminate his employment should he commit any act that was the same as, or similar to, the acts underlying the charges cited in the notice of discipline.

During the “disciplinary evaluation period” Petitioner was sent a letter of termination in which the appointing authority stated that “Petitioner failed to respond appropriately to an emergency situation.”

The Appellate Division, noting that “The disciplinary settlement agreement entered into by the parties constituted a valid, binding contract,” dismissed Petitioner’s action.

The court explained that under the terms of this agreement, the Petitioner would be permitted to continue his employment notwithstanding the prior notice of discipline and he, in turn, agreed to the termination of his employment during the disciplinary evaluation period for any act that was deemed to be the same as or similar to the acts underlying the charges cited in the notice of discipline.

Petitioner, in agreeing to the terms set out in the disciplinary settlement agreement, absent bad faith on the part of the appointing authority, waived any right he may have had under the operative collective bargaining agreement to a review of the appointing authority’s decision to terminate his employment “for acts the same as or similar to his prior alleged misconduct.”

Finding that the appointing authority’s decision to terminate his employment was rationally based and thus was not arbitrary and capricious, in the absence of Petitioner demonstrating that his termination was carried out in bad faith or illegally accomplished, the Appellate Division sustained Petitioner's being summarily removal from his position

Further, said the court, Petitioner failed to raise an issue of fact sufficient to warrant a hearing as otherwise provided pursuant to §7804(h) of the Civil Practice Law and Rules [CPLR].

In contrast, in Taylor v Cass, 122 A.D.2d 885, a County employee won reinstatement with full retroactive salary and contract benefits because the court determined that he was improperly dismissed while serving a disciplinary probation period. The terms of Taylor’s probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” at any time during his disciplinary probationary period. Taylor was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.”

The Appellate Division ruled that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement agreement: intoxication on the job.

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The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html
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Failure to fulfill the requirements for an extension of a leave of absence


Failure to fulfill the requirements for an extension of a leave of absence
OATH Index No. 749/14

New York City Office of Administrative Trials and Hearings Administrative Law Judge John B. Spooner recommended the termination of employment of a service aide for excessive absence and absence without leave.

The ALJ rejected the aide’s claim that he was unable to work due to disability and that his employer improperly denied his leave request.

Judge Spooner noted that the employee had been granted a two-month medical leave and was told that if he needed to extend the leave he must request the extension with documentation of his “diagnosis, prognosis, and dates unable to work” prior to the expiration of the leave. 

ALJ Spooner found respondent failed to fulfill the requirements for an extension. His formal extension request was filed months late and the medical notes he submitted gave no information as to treatment and were vague as to prognosis.

The decision is posted on the Internet at http://archive.citylaw.org/oath/14_Cases/14-749.pdf
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Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://booklocker.com/books/7401.html

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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