Tuesday, May 21, 2013
Appointing authority's decision to terminate an employee for “serious misconduct” found appropriate under the circumstances
There is a constitutional right to be present during the testimony of the complaining child absent some compelling reason to bar the employee from the hearing while the child is testifying
A teacher appealed the Supreme Court’s denial of her petition to vacate the adverse disciplinary arbitrator’s award and its granting the employer’s motion to confirm the award.
Monday, May 20, 2013
Statewide program to reward highest performing teachers and help improve classroom performance announced by Governor Cuomo
Source: Office of the Governor
Governor Andrew M. Cuomo predicted that New York State’s Master Teacher Program for Teachers will encourage “the best and brightest to stay in education and mentor other teachers.”
The NYS Master Teacher Program will be managed by SUNY with technical assistance provided throughout the first phase of implementation by Math for America, a successful program currently operating in New York City and other major cities. The Master Teacher program will be based at and hosted by higher education institutions in each of the 10 regional economic development regions.
Selected master teachers will engage in peer mentoring, attend and create intensive content-oriented development opportunities throughout the academic year. Master teachers will also work closely with pre-service and early career fellows to develop future world-class educators.
Eligible teachers must be ranked “highly effective,” have a minimum of 4 years teaching experience, hold a NYS teaching certification and have their primary teaching responsibilities be in the areas of math and science in grades six through twelve.
Applications will be available on July 1st and due by August 1st. The first round of Master Teachers will be announced on September 1st.
Department of Health, Excessive Medicaid Payments for Services to Recipients Receiving Medicare Benefits (Follow-Up) (2012-F-29)
An initial audit report, issued in September 2010, examined whether DOH was correctly paying claims for services to Medicaid recipients who also had health insurance through Medicare. Auditors identified about $600 million in Medicaid payments that could have been avoided had DOH taken more comprehensive and proactive steps to administer Medicaid reimbursements for services provided to dual eligible individuals. In the audit just released, auditors found DOH and Office of the Medicaid Inspector General officials have made progress in correcting the problems identified in the initial report. All three prior audit recommendations have been partially implemented.
New York State Thruway Authority, Inspecting Highway Bridges and Repairing Defects (2012-S-33)
NYSTA is responsible for inspecting its bridges and repairing any defects found during inspections. If a serious (“red flag”) structural defect is identified during an inspection, NYSTA must notify the New York State Department of Transportation (DOT) within one week. NYSTA has six weeks to take appropriate action. In addition, NYSTA must provide DOT with the written determinations from bridge inspections within 60 days. Auditors found the authority repairs defects identified during inspections. However, highway bridges were not always inspected timely and DOT was not always notified of red flags within one week, as required.
Rochester-Genesee Regional Transportation Authority, Real Estate Portfolio (2012-S-90)
The Rochester-Genesee Regional Transportation Authority provides public transportation services in Monroe, Genesee, Livingston, Orleans, Wayne, Wyoming and Seneca counties. State law requires each authority to maintain adequate inventory controls for its property and report annually on all property held. It also requires authorities to determine which property shall be disposed of and transfer or dispose of such property as promptly as possible. Auditors found the authority has accounted for all of its property holdings and established a value for them. However, it owns two properties that have been identified as excess holdings for more than 14 years. Additionally, the authority did not accurately report its property holdings during the three years ended March 31, 2012.
Department of Environmental Conservation, Pollution Testing on Exhaust Emissions from Heavy Duty Diesel Vehicles (Follow-Up) (2013-F-3)
The initial audit report, issued in March 2010, examined whether DEC adequately fulfilled its testing program responsibilities for exhaust emissions. Auditors found DEC generally fulfilled its responsibilities but could improve by maintaining critical performance data and coordinating with DMV and DOT to ensure such data was maintained for all aspects of the program. Auditors also questioned whether DEC's coverage of inspection facilities was adequate. In a follow-up report, auditors found DEC officials have made progress addressing the issues identified in the initial report. Of the 12 prior audit recommendations four were implemented, five were partially implemented, and three were not implemented.
State University of New York, Fuller Road Management Corp., College of Nanoscale Science and Engineering - Network Security Controls (2012-S-28)
The college has a number of business relationships with both public and private organizations. As part of these relationships, the college facilitates the management and processing of financial, legal, research, and numerous other types of data. The New York Office of Cyber Security’s Information Security Policy defines a set of minimum security requirements that are considered best practices for all state entities, including SUNY campuses. Auditors found that in addition to the security measures established by the university, the college has implemented its own controls that protect the security of systems and data.
Department of Agriculture and Markets, Disposal of Electronic Devices (2012-S-70)
State policy requires all state agencies to establish formal procedures to address the risk that personal, private or sensitive information may be improperly disclosed. One way information can be compromised is through disposal of electronic devices. Auditors found that 15 of the 132 electronic devices readied for surplus by the agency still contained data, even though the department had certified that all memory devices had been removed. One of the hard drives contained personal, private and sensitive information related to an employee. The printer hard drive and cameras also contained retrievable data, and the cell phones had not been programmed back to their original manufacturer settings.
Capital District Transportation Authority, Real Estate Portfolio (2012-S-91)
The authority’s primary responsibility is the management of the capital region’s bus services. State law requires the authority to report its real property holdings, listings of properties purchased or sold and its sale/lease procedures annually. The authority has a real estate portfolio that consists of nine properties/facilities. In connection with this portfolio, the authority reported that it has entered into 23 leases that generate about $808,000 annually. Auditors found the authority’s annual report for 2011-2012 omitted three properties. In addition, the three properties were not disclosed on the authority website and the report that was available on the website was not dated. The authority also could not document that it achieved fair market value for the properties.
Department of Transportation, Collection of Lease and Permit Revenues (2012-S-6)
DOT has land that it does not use continuously. Interested parties can pay a fee for a permit to use such land temporarily. Auditors found DOT is not effectively collecting all unpaid lease and permit fees. As of May 2012, DOT was owed $6 million in lease and permit revenues, including $2.4 million between two and six years past due and another $1.4 million at least six years past due. In total, 195 permits were more than 30 days past due. Of 45 sampled permits which had outstanding balances, no action was taken on eight. These eight permits had a total of $417,000 outstanding at the time of the audit.
Statewide Travel Audits
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entity:
State University of New York, College at Plattsburgh - Selected Employee Travel Expenses (2012-S-141)
Auditors examined the travel costs of two college employees with $194,805 in travel costs. Most of the expenses examined were appropriate. However, one faculty member charged the College for $708 in expenses that were not related to official business and used his travel card for $177 of other inappropriate expenses.
For other recent audits, including those on travel, go to: http://www.osc.state.ny.us/audits/auditDateList.htm
An appointing authority’s threatening to take adverse personnel action against an employee that it has a legal right to undertake does not constitute duress
Supreme Court determined that the resignation of a tenured teacher [Educator] formerly employed by the school district, "was involuntarily submitted as a result of fraud, coercion and duress" and directed Educator’s reinstatement with back pay and benefits.”
Sunday, May 19, 2013
State Comptroller reports a returned 10.38 % on for the State’s pension fund Investments in FY 2013, currently valued at an all time high of $160 billion
“The New York State Common Retirement Fund has reached a milestone,” DiNapoli said. “The Fund ended the fiscal year at an estimated $160.4 billion, an all-time high, and it remains well-positioned for growth as the financial markets continue to gain strength. Fiscal year 2014-2015 will be the final year that employer contribution rates will reflect the market loss of 2008-2009.”
Returns for the Fund’s asset classes were:
- Domestic Equities returned 14.48 percent (at 36 percent of the Fund’s total investments)
- Fixed Income returned 4.87 percent (28.2 percent)
- Non-US Equities returned 9.47 percent (14.1 percent)
- Private Equity returned 11.75 percent (8.6 percent)
- Real Estate returned 11.08 percent (6.8 percent)
- Global Equities returned 13.88 percent (2.9 percent)
- Absolute Return Strategies returned 7.95 percent (3.2 percent)
- Opportunistic Alternatives returned 7.89 percent (0.2 percent)
The New York State and Local Retirement System provides benefits to over one million state and local government employees, retirees and beneficiaries. Over the last 20 years, 82 percent of the cost of benefits have been funded from investment returns.
Click here for prior year returns.
Saturday, May 18, 2013
NYPPL's Decision of the Week for the Week ending May 18, 2013 - Allegations of unlawful racial discrimination
For the Week Ending May 18, 2013
This action was brought by the United States Department of Justice pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg. and alleged that hiring of New York City firefighters was tainted by unlawful racial discrimination and that the New York City Fire Department’s employment procedures for screening and selecting entry-level firefighters had an unjustified disparate impact on black and Hispanic applicants.
Friday, May 17, 2013
The provisions in a collective bargaining agreement that are otherwise controlling may be waived if the waiver is “knowing and voluntarily” made
The court explained that there was not dispute that the arbitration of the claim with respect to the subject matter at issue is authorized under the Taylor Law. Here, however, in accordance with the applicable two-step inquiry to be made by the courts in such situations, it must next be determined whether "such authority was in fact exercised and whether the parties did agree by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration"
However this provision requires that the extended probationary term to be served in a different assignment.
The court ruled that this second probationary period was “unauthorized” as there was no change in the individual’s “assignment” and thus his appointment as Chief Cook “ripened into a permanent appointment upon his retention in the position beyond the 52-week period of probation.”
Thursday, May 16, 2013
An employee’s satisfying the employer’s residency requirement is critical to his or her continuation in employment
2013 NY Slip Op 03230, Appellate Division, Fourth Department
Wednesday, May 15, 2013
Where there is broad arbitration clause in the collective bargaining agreement, the arbitrator rather than the court is to determine if the subject of the dispute is arbitrable
Tuesday, May 14, 2013
On May 14, 2013, Governor Andrew M. Cuomo issued a proposal to create a Financial Restructuring Board to help distressed local governments manage their finances. The proposal includes an alternative binding arbitration process that municipalities and unions could voluntarily opt for to resolve contract issues in an expedited procedure.
In the words of the Governor: "Growing retirement costs, declining populations, decreasing property values, and the recent fiscal crisis have all contributed to the difficult financial issues facing localities today …The Financial Restructuring Board will bring together state and local officials to help localities make tough decisions and solve this crisis now instead of kicking the can down the road."
More money is not the solution to help local governments solve their fiscal issues said the Governor. “The State's existing Aid and Incentives for Municipalities (AIM) program does not reflect local government need or performance, and already constitutes a large percentage of the budgets of New York's largest cities (outside of NYC)”
Financial Restructuring Board: The Board would include the State Budget Director, Secretary of State, Attorney General, Comptroller, and one private sector restructuring professional. The Budget Director would establish standards to determine which local governments qualify as fiscally distressed. Fiscally distressed local governments would be able to request the assistance of the Board, and work together to identify a specific restructuring plan.
Implementing Restructuring Plan: The 2013-14 Budget includes up to $80 million to assist local governments with reorganization plans. Recommendations of the Board would be binding upon any municipality that accepts funding. The Board may require development of multi-year financial plans, functional consolidation, mergers, shared services, fewer elected officials, and other measures.
The Board would also serve as a binding arbitration panel: The Board would provide an alternative to the binding arbitration process for police, fire, or deputy sheriff unions if municipalities and unions agree. The Board would render an arbitration ruling within 9 months.
Employee terminated following a disciplinary hearing after receiving counseling memoranda regarding serious and specific deficiencies in her job performance
The County Administrator adopted the Hearing Officer's findings and recommendation and terminated Petitioner’s employment. Petitioner appealed, challenging the County Administrator’s decision and asked the court to direct her reinstatement as deputy director of the Department with back pay.
The decision is posted on the Internet at:
Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:
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://nypplarchives.blogspot.com/
The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. 2100+ page e-book. For more information click on http://thedisciplinebook.blogspot.com/
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://nylayoff.blogspot.com/
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://section207.blogspot.com/
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