The relationship of a statute to the provisions of a Taylor Law agreement

The relationship of a statute to the provisions of a Taylor Law agreement

Civil Service Employees Association v. Town of Harrison, 48 NY2d 66

Where the court determines that a statute sets out a strong public policy, that provision will trump a  provision in a collective bargaining agreement inconsistent with the statute.

In the Town of Harrison case the Court of Appeals said that there is only one way a new position in the classified service of a municipality may be created: the way the controlling law requires.

In this instance the statutory imperatives of §22 of the Civil Service Law were viewed as reflecting such a strong public policy with respect to establishing new positions that it may not be ignored nor may it be circumvented under color of an “alternative” to the provisions of §22 contained in a collective bargaining agreement negotiated pursuant to the Taylor Law (§200 et seq, Civil Service Law). Failing to comply with the mandates of Civil Service Law §22 was fatal and no new position can come into being unless it is created as prescribed by Section.

Although the court did not address the “status” of the incumbent of the “new position” in its decision, it would appear that the “status” of the individual is not dependent on the “existence” of any position and, presumably, other relevant provisions of the Civil Service Law (i.e., §80, Layoff) would control if the “nonexistent new position” could no longer serve as a “position” for payroll purposes.

Another example of a provision in the Civil Service Law nullifying a provision in a collective bargaining agreement is City of Plattsburgh v Local 788, 108 AD2d 1045. In Plattsburgh the issue concerned the application of a Taylor Law contract provision dealing with seniority in a demotion involving a layoff situation.

The collective bargaining agreement between the City and Local 788 provided if there were to be demotions in connection with a layoff, the "date of hire" was to be used to determine an employee's seniority. However, the "date of hire" might not necessarily be the same date used to determine an individual's service for seniority purposes for layoff under State law, i.e., the individual's date of initial permanent appointment in public service.

In this instance the employee retained by the City had been initially appointed after the individual that Plattsburgh had been demoted. However the retained employee had been permanently appointed to the position prior to the effective date of the permanent appointment of the individual Plattsburgh had demoted.

The Court said that §80 of the Civil Service Law "reflects a legislative imperative" that the City was powerless to bargain away and granted the City’s Article 75 petition to permanently stay the Local from submitting its grievance alleging a contract violation to arbitration.

Does the State’s Son of Sam Law allow recovery from any and all of a convicted person’s assets, including his or her NYSERS retirement allowance?

Does the State’s Son of Sam Law allow recovery from any and all of a convicted person’s assets, including his or her NYSERS retirement allowance? 

New York State Off. of Victim Servs. v Raucci, 2012 NY Slip Op 04440 [97 AD3d 235], Appellate Division, Third Department, Motion before the Court of Appeals for Leave to Appeal Granted, Slip Opinion No: 2012 NY Slip Op 84607

The Court of Appeals will consider the appeal of Steven C. Raucci and his spouse, Shelley Raucci, a nonparty-appellant from an Appellate Division ruling that held that the Son of Sam Law, which does not expressly exempt pension funds from its reach, trumps §110 of the Retirement and Social Security Law. §110 exempts the pension funds from garnishment or any other legal process.

Steven C. Raucci was sentenced to a lengthy prison term upon his conviction of numerous crimes related to his employment with a school district. After receiving notice from two victims of these crimes of their intent to commence civil actions against Raucci for money damages, the New York State Office of Victim Services commenced this proceeding on their behalf pursuant to the Son of Sam Law (see Executive Law §632-a).

Victim Services contended that Raucci’s pension checks from the New York State and Local Employees' Retirement System are delivered to his wife, Shelley Raucci, who holds a power of attorney that enables her to cash such monthly pension checks, thereby giving her control over the funds and threatening their disbursement in a manner that would render ineffectual any civil judgments obtained by the crime victims.

The Appellate Division noting that in 1991 the Legislature, subject to certain limitations,  "expand[ed] the [Son of Sam] [L]aw to cover money and property that a convicted criminal receives from any source," concluded that the statute, as amended, permits crime victims to commence an action “within three years of the discovery of any profits from a crime or funds of a convicted person."

In the words of the Appellate Division, “Apart from [certain] exceptions, however, the amendments to the Son of Sam Law were intended to ensure that convicted criminals are ‘held accountable to their victims financially, regardless of their source of wealth’" Thus, said the court, it its view both the unambiguous statutory language of the Son of Sam Law and the legislative history of the 2001 amendments support Victim Services’ argument that Raucci's pension funds are not exempt from the statute's reach.

The New York Law School Law Review has published an article by Jessica Yager, Esq. that addresses various aspects of the Sun of Sam Law titled Investigating New York’s 2001 Son Of Sam Law: Problems with the Recent Extension of Tort Liability for People Convicted Of Crimes,  [Vol. 48, 2004, Pages 433-488]  Ms. Yager’s Law Review article is posted on the Internet at: http://www.nyls.edu/user_files/1/3/4/17/49/Vol48no3p433-488.pdf

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending December 28, 2012 [Click on the caption to access the full report]

New York State Comptroller Thomas P. DiNapoli announced that the following audits have been issued:

SUNY at New Paltz Selected Employee Travel Expenses (2012-S-140)

Auditors examined the travel expenses for one college employee whose travel charges totaled $269,627. They found that the selected employee was responsible for arranging travel for other college staff members, charging these travel expenses to her travel card. Auditors reviewed a sample of charges to this employee’s travel card and found the expenses were documented and adhered to state travel rules and regulations. 


Department of Economic Development Quality of Internal Control Certification (2012-S-48)

In 1987, the Legislature passed the New York State Governmental Accountability, Audit and Internal Control Act requiring state agencies and public authorities to each institute a comprehensive system of internal controls over their operations. Each covered State agency and public authority is required to certify compliance with act by April 30 of each year. DED's Internal Control Certification was submitted timely. 

However, auditors identified several areas where the quality of the certification could be improved. In three instances, DED's certification did not provide the required level of detail to explain the actual steps taken to implement certain provisions, including describing its internal control testing and monitoring processes and the results of its reviews of high risk activities. Although DED certified full compliance with all provisions of the act, its internal audit function has not had an external quality control assessment completed as required by professional auditing standards. 


Office of General Services Disposal of Electronic Devices (2012-S-4) 

The New York State Office of Cyber Security requires all state entities to establish formal processes to address the risk that information may be improperly disclosed. Information can be compromised through careless disposal of electronic equipment. OGS' surplus unit disposes of such equipment for many State agencies. 

The Surplus Unit does not accept any responsibility for clearing the data from these devices. However, OGS' Information Resource Management (IRM) bureau provides IT support for some state agencies. In these cases, IRM is responsible for removing information from the devices prior to making them available to the surplus unit. 

At the time of the audit, the surplus unit had 429 electronic devices in its possession for disposal and IRM was responsible for removing information from 25 of the devices on hand. Of these, three did not have information completely removed. One of the three devices still had sensitive information on a hard drive, including multiple social security numbers, medical records and confidential human resource information. 


New York State Health Insurance Program -Department of Civil Service Empire BlueCross BlueShield Selected Payments for Special Items for the Period April 1 Through June 30, 2011 (2011-S-42) 

Empire processes claims for hospital services in accordance to agreements they negotiate with member hospitals. Payments for hospital services are generally based on standard fee schedules. However, hospitals may be entitled to additional payments for special items that are not covered by the standard fee schedules. 

Many of Empire's agreements with member hospitals limit charges for special items, while agreements with other hospitals do not have such limitations. Auditors found Empire did not have adequate controls to ensure special items were paid according to contract limitations. 

As a result, Empire made a net overpayment of $119,141 on 33 claims. Empire made an excessive payment to a hospital that did not have formal contract provisions limiting reimbursements for special items. On one claim we reviewed, Empire paid about $52,755 (or 444 percent) more than the costs of the three special items in question.

Pension Fund permitted to credit report of the scene were the alleged accident occurred made at the time of the event over a description of the scene made two years later

Pension Fund permitted to credit report of the scene were the alleged accident occurred made at the time of the event over a description of the scene made two years later
Lang v Kelly, 2012 NY Slip Op 08788, Appellate Division, First Department

 
Board of Trustees of Police Pension Fund of Police Dept. of City of New York, by a tie vote, rejected Jean Lang’s application for accidental disability retirement benefits.

Supreme Court dismissed Lang’s Article 78 petition challenging the rejection of her application and the Appellate Division affirmed the lower court’s ruling. The Appellate Division held that Lang “failed to demonstrate as a matter of law that her injury was the result of an accident, i.e., a sudden, unexpected, out of the ordinary event, rather than a misstep during the routine performance of her job.”

According to the decision, Lang was injured when she tripped over computer wires extending across the threshold of the doorway between two rooms. In a statement made contemporaneously with the accident, Lang indicated that the wires were "exposed."

Two years later, however, Lang submitted a statement indicating that the wires had initially been secured to the floor with duct tape and that the tape was removed on the day she fell.

The Appellate Division held that the Pension Fund was entitled to credit Lang's contemporaneous account and reject her more recent statement that the condition of the wires changed on the day of the accident, explaining that the Fund “reasonably inferred that, since the wires had been in place for several months before [Lang’s] fall, she must have been aware of them and routinely stepped over them.

Another case illustrating the importance of a comprehensive physical description of the scene where the event occurred in the initial accident report is Slagle v McCall, 293 AD2d 923.

John K. Slagle, a firefighter, was injured while responding to a fire. According to the decision, the incident report and application for accidental disability retirement filed by Slagle both indicated that as he stepped over a downed chain link fence his boot caught on the fallen fence, causing him to fall.

Slagle, however, testified at his disability hearing before the Retirement System that he was unaware of the fallen fence because it was hidden in tall grass and weeds. Significantly, said the court, no mention of "tall grass and weeds" was noted in either Slagle's incident report or his application for accidental disability retirement benefits.

Slagle argued that his encounter with the fence and his subsequent fall constituted an accident since it was "sudden and unexpected." The Comptroller, however, concluded that Slagle's injury was the result of a misstep as he attempted to step over the fallen fence and that, therefore, he did not sustain an accident within the meaning of the Retirement and Social Security Law. The Appellate Division sustained the Comptroller's determination.

The court said that assuming that Slagle's testimony that he was unaware of the fence was sufficient to demonstrate an accident, "neither the accident report filed by [Slagle] shortly after the injury nor his application for benefits contained any reference to tall grass, weeds or the hidden nature of the fallen fence."

The court found that incident report and disability retirement application form submitted by Slagle provided the substantial evidence necessary to support the Comptroller's finding that "Slagle's fall was caused by his misstep or miscalculation in attempting to step over the fallen fence while engaged in the performance of his ordinary employment duties."

Thus, said the court, "there is no basis to disturb the Comptroller's conclusion that [Slagle] did not sustain an accident."

Clearly including references to "tall grass and weeds" hiding the downed fence might not have guaranteed approval of Slagle's application for accidental disability retirement benefits. However, the information he initially supplied in the incident report and in his application for benefits, despite his somewhat different testimony at the hearing, proved sufficient to allow the Comptroller to base his decision solely on the information contained in the incident report and Slagle's disability retirement application form.

The Lang decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08788.htm

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Contempt proceeding used to enforce a court order directing reinstatement

Contempt proceeding used to enforce a court order directing reinstatement
Angel Nunez v City of New York, 43 AD3d 808

Angel Nunez obtained a court order directing his reinstatement to his former position, or a comparable position, with the New York City Department of Sanitation, together with back pay and benefits [City of New York v New York State Div. of Human Rights, 229 AD2d 307, leave to appeal denied, 89 NY2d 801]. Sanitation, however, neither reinstated Nunez to his former position nor to an equivalent position.

Nunez then petitioned the court to compel his reinstatement. Supreme Court dismissed his petition to have the Department to reinstate him, ruling that he delayed too long in bringing his action and thus Nunez was guilty of laches 

The Appellate Division reverse the lower court’s ruling, noting that although Nunez, an attorney, had waited 15 months before bringing the matter to the attention of the court rather than seeking earlier judicial intervention, both he and the Department had contributed to the delay.

The Appellate Division said that Nunez’s recourse was to bring a contempt proceeding when the Department failed to comply with the order of the court. It said that it “was futile to insist that [Nunez] bring a new complaint with the Division of Human Rights before seeking enforcement.” It then converted Nunez’s action into a “contempt proceeding” and remanded the case to Supreme Court for a hearing.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2007/2007_07072.htm

Arbitrator’s ruling employee worked “out-of-title” does not violate public policy

Arbitrator’s ruling employee worked “out-of-title” does not violate public policy
County of Westchester v Edward Doyle, Jr., 43 AD3d 1055

Westchester County filed a CPLR Article 75 petition in an effort to vacate an arbitration award holding that one of employees had been working “out-of-title” on the grounds that the award constituted a “violation of public policy.” The Appellate Division disagreed, ruling that “public policy was not violated here merely because the determination that the respondent William Leverance was working out-of-title was made by an arbitrator.”

Another issue involved in this action: what is the date from which interest on the addition compensation due the employee is payable?

The Appellate Division said, and the employee conceded, interest was to be paid from the date of the arbitration award, rather than from the date from which the employee was entitled to compensation for his performing out-of-title work.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2007/2007_06874.htm

Court of Appeals to consider arbitration award reinstating school bus driver terminated from the position after testing positive for marihuana in a random drug test

Court of Appeals to consider arbitration award reinstating school bus driver terminated from the position after testing positive for marihuana in a random drug test

Shenendehowa Cent. School Dist. Bd. of Educ. (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO, Local 864), 90 AD3d 1114

The Court of Appeals will hear Shenendehowa Central School District’s appeal from the Appellate Division's ruling sustaining an arbitrator’s award that reinstated a school bus driver terminated after testing positive for marihuana in a random drug test.

Motions by New York State School Boards Association, Inc. and by New York State United Teachers for leave to file briefs amicus curiae on the appeal were also granted by the court.

NYPPL summary the Appellate Division’s ruling in this action is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/search?q=Shenendehowa

Hearsay is admissible in administrative proceedings and, if sufficiently relevant and probative, may constitute substantial evidence

Hearsay is admissible in administrative proceedings and, if sufficiently relevant and probative, may constitute substantial evidence
Szczepaniak v City of Rochester, 2012 NY Slip Op 08896, Appellate Division, Fourth Department

The City of Rochester determined that one of its employees was guilty of the disciplinary charges filed against him and terminating him from his employment. Supreme court dismissed the individual's Article 78 petition challenging his dismissal and the Appellate Division affirmed the lower court’s ruling.

One of the arguments advanced by the individual in his petition was that “the determination is not supported by substantial evidence because the evidence presented was hearsay.“*

The Appellate Division, noting that the hearsay evidence admitted at the administrative hearing consisted of attendance records about individual’s outside employment, ruled that the evidence was relevant and probative on the charges that the individual had worked at that outside employment while he was on sick leave, or other leave from his employment with the City, and receiving certain benefits.

The court explained that hearsay is admissible in administrative proceedings "and if sufficiently relevant and probative may constitute substantial evidence." Accordingly, said the Appellate Division, there is no merit to the individual's contention that the determination is not supported by substantial evidence because the evidence presented was hearsay.

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division said that it found that the appointing authorities determination as to the employees guilt was “supported by substantial evidence, i.e., "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

As to the penalty imposed, dismissal, the court said that it concluded that “the penalty of termination from petitioner's employment is not ‘so disproportionate to the offense[s] as to be shocking to one's sense of fairness,’ and thus does not constitute an abuse of discretion as a matter of law,” citing Kelly v Safir, 96 NY2d 32.

* Essentially hearsay evidence is testimony given by an individual who testifies about what he or she has heard from others rather than testifies about that which he or she personally heard, knows or observed concerning a conversation, an event or a situation.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08896.htm

Interpreting any statute, first and foremost, requires paying heed to the intent of the Legislature as reflected in the plain language of the statute

Interpreting any statute, first and foremost, requires paying heed to the intent of the Legislature as reflected in the plain language of the statute

Samuelsen, as president of Local 100, Transport Workers Union of Greater New York v New York City Tr. Auth. et al, 2012 NY Slip Op 08780, Appellate Division, First Department

Local 100, Transport Workers Union of Greater New York [Union] is the exclusive collective bargaining representative of approximately 32,000 workers employed by various subordinate bodies and affiliates of the New York City Metropolitan Transportation Authority. One of its component units is the New York City Transit Authority (TA).

The Manhattan and Bronx Surface Transit Authority (MaBSTOA) was created by the Legislature in 1962 after the City of New York seized several privately owned and operated bus lines through its eminent domain power.*  

Public Authorities Law §1203-a, in pertinent part, provides: "[MaBSTOA] officers and employees shall not become, for any purpose, employees of the city or of the [TA] and shall not acquire civil service status or become members of the New York City Employees' Retirement System" (NYCERS). Although this arrangement was originally intended to operate "for a temporary period" (Public Authorities Law 1203-a[2]), it has continued until the present. Although the two authorities have remained separate legal entities, they  nevertheless developed, as a practical matter, functional overlap such as sharing common office facilities and a personnel department.

Certain differences, however, were maintained with respect to personnel matters. For example, the terms of employment for both TA and MaBSTOA employees were governed by a collective bargaining agreement [CBA], with certain exceptions such as the CBA providing that any layoffs of MaBSTOA employees would occur in reverse order of seniority, based upon date of hire. However there was no similar provision in that agreement concerning TA workers as the layoff of TA workers was controlled by the §§80 and 81 of the Civil Service Law. Another difference: set out in the CBA addressed “job selection.” MaBSTOA employees could pick only jobs associated with the bus lines operated by MaBSTOA while TA employees could pick only jobs associated with bus lines and subways operated by TA.

In December 2002, the TA and MaBSTOA executed a "Memorandum of Understanding" with the Union (MOU) that modified the CBA to provide for the consolidation of MaBSTOA and TA surface transit operations whereby "The Authority and the Union agree to the elimination of the artificial distinction between MaBSTOA and the Transit Authority….” To effectuate the MOU, the parties established a joint job pick procedure that allowed MaBSTOA and TA employees, subject to certain limitations, to "pick into" TA jobs and TA employees to "pick into" MaBSTOA jobs in accordance with a single, integrated seniority list, known as the "Consolidated Seniority List."

Asserting that this directly violates the prohibition in Public Authorities Law §1203-a(3)(b) against MaBSTOA employees becoming, "for any purpose, employees of the city or of the [TA],  the Union alleged that "as a result of" the MOU and the consolidation agreement, "employees of MaBSTOA are, for almost all purposes, employees of [the TA]. The Union further alleged that “MaBSTOA employees regularly work in [TA] facilities” and other than not having civil service status or participating in a different pension system, “MaBSTOA employees working for [TA] are for all purposes indistinguishable from [TA] employees."

The Union sought a judgment declaring that:

1. “No MaBSTOA employee may be treated as an employee of the TA for any purpose, and that the MOU and consolidation agreement are void and unenforceable to the extent that they have effectively made employees of MaBSTOA into employees of the TA.” and

2. Prohibiting the MaBSTOA from taking any action in accordance with the 2002 MOU and 2003 consolidation agreement that is prohibited under the Public Authorities Law, or that adversely affects the employment of any employee of MaBSTOA.

Supreme Court dismissed the Union’s complaint “for failure to state a cause of action.” The Appellate Division reversed the lower court’s ruling “on the law.”

As to Supreme Court’s finding that the Union’s compliant “failed to state a cause of action because nothing in the MOU or consolidation agreement indicated that MaBSTOA employees would gain civil service status or become members of NYCERS,” the Appellate Division explained that “[i]n interpreting any statute, we are required, first and foremost, to pay heed to the intent of the Legislature, as reflected by the plain language of the text,” citing Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577.

In addition, said the court, "[i]n construing statutes, it is a well-established rule that resort must be had to the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning."

Noting that a plaintiff’s pleading is to be afforded a liberal construction, the Appellate Division held that “the facts alleged in the complaint are to be accepted as true, and plaintiff is to be accorded the benefit of every possible favorable inference,” citing Leon v Martinez, 84 NY2d 83.

In the words of the court “… the language we are required to interpret is as follows: ‘[MaBSTOA] officers and employees shall not become, for any purpose, employees of the city or of the [TA] and shall not acquire civil service status or become members of [NYCERS]’ (Public Authorities Law 1203-a[3][b]). In our view, this plainly means that three separate prohibitions apply to MaBSTOA employees: (1) that they ‘shall not become, for any purpose,’ employees of the TA; and (2) that they shall not acquire civil service status; and (3) that they shall not become members of the NYCERS. Accordingly, we agree with the Union that, to the extent that the MOU and consolidation agreement, by merging many of the policies of the two authorities, such as probationary employment rules, disciplinary rules, and sick-leave rules, transform MaBSTOA employees into employees of the TA, the agreements violate the first prohibition.”

The Appellate Division rejected the City Transit Authority’s argument that "[t]he plain and obvious meaning of the 'for any purpose' language is to ensure that a MaBSTOA employee cannot, simply by virtue of employment by MaBSTOA, even in a contractually agreed upon commingled work force, acquire civil service status or membership in NYCERS."

The most glaring problem with this interpretation, said the court, is that “it is decidedly not what the statute says.” Rather, said the Appellate Division, “[t]he way the provision is written, the ‘and’ creates a separation between the ‘for any purpose’ clause and the rest of the sentence. It does not signal a modification to the ‘for any purpose’ clause or in any way refer back to it. Furthermore, defendants' interpretation renders the first prohibition superfluous, a result which ‘is to be avoided,’ [citing] Matter of Branford House v Michetti, 81 NY2d 681.”

In other words, said the court, “defendants argue that if a MaBSTOA employee cannot, under any circumstances, be subject to the Civil Service Law or participate in NYCERS, they simply cannot be considered TA ‘employees,’ rendering the first clause meaningless if not considered in the manner they urge. This approach is too narrow, for it pays no heed to the notion that different people working under the same employer can be classified differently.”

"In other words, not every employee in an organization is similarly situated. Here, the statute recognizes that MaBSTOA workers could become so integrated into the TA organization that they could be seen as TA employees, albeit without the protections of the Civil Service Law and the benefit of NYCERS participation. We simply discern nothing in the statutory language which confirms, as the dissent insists, that Civil Service Law protection is the distinguishing' or hallmark' quality of TA employment."

The majority, in response to a comment in the dissent, also observed that its approach was not in conflict with other provisions in the Public Authorities Law that might be interpreted as encouraging some standardization of the two agencies' operations.

Agreeing with the Union’s interpretation of Public Authorities Law §1203-a(3)(b), the Appellate Division held that complaint sufficiently alleged facts establishing that the MOU and consolidation agreement had the effect of conferring on MaBSTOA workers qualities of "employment" by the TA, it ruled that Supreme Court “erred in dismissing the complaint as not having stated a cause of action.”

* MaBSTOA became a subsidiary corporation of the TA.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08780.htm

Arbitration award imposing a $10,000 fine as the penalty for inflicting corporeal punishment on a student sustained

Arbitration award imposing a $10,000 fine as the penalty for inflicting corporeal punishment on a student sustained

Stoyer-Rivera v New York City Board/Department of Educ. 2012 NY Slip Op 08816, Appellate Division, First Department

Supreme Court denied the plaintiff’s petition to vacate an arbitration award issued after a hearing pursuant to Education Law §3020-a. The arbitrator had found the plaintiff guilty of inflicting corporal punishment on a student and imposed a $10,000 fine.

The Appellate Division sustained the lower court’s ruling, holding that the lower court had properly found that the hearing officer's determination was supported by adequate evidence, was rational and neither arbitrary nor capricious.

The Appellate Division noted that the disciplinary specifications that were sustained by the arbitrator were supported by the injured student's testimony, along with the written statements from other student witnesses that corroborated the injured student's version of events, and the testimonial and physical evidence regarding the injured state of the student's ear.

Citing the Pell standard, of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division said that the arbitration award, which imposed a penalty of a $10,000 fine upon petitioner was not "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08816.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of December 17 - 23, 2012 [Click on the caption to access the full report]

DiNapoli Proposes Legislation To Help Local Governments With Storm Costs

State Comptroller Thomas P. DiNapoli has proposed a legislative package to help local governments deal with the financial impact of Hurricane Sandy. The Comptroller submitted four bills last week to the New York State Assembly and Senate.

DiNapoli: SED Providing Inadequate Oversight of Special Education Contractors

New York State Comptroller Thomas P. DiNapoli Tuesday called on the State Education Department (SED) to increase scrutiny of special education contractors after an audit revealed SED has not conducted any on–site audits since 2007 and has no process to routinely review the hundreds of millions of dollars charged by these private providers annually.

DiNapoli Leads Coalition Demanding Aetna Disclose Political Spending

Citing reputational risks and a need for greater transparency in how shareholder dollars are being spent, New York State Comptroller Thomas P. DiNapoli announced that he has filed a shareholder resolution with Aetna Incorporated to adopt a policy to publicly disclose all of its direct and indirect political expenditures. The Comptroller’s resolution was co–filed by global asset manager F&C Management Ltd. In a related effort, a group of institutional investors led by the Unitarian Universalist Association filed a separate resolution urging the company to seek greater board involvement and oversight over political spending.

DiNapoli: $89 Billion Shortfall for Essential Infrastructure Projects Over the Next Two Decades

New York faces a shortfall of up to $89 billion in funding for water, sewer and transportation infrastructure over the next two decades, according to a report issued Thursday by State Comptroller Thomas P. DiNapoli. The report is the latest in a series of reports DiNapoli will issue to highlight the causes of fiscal stress in New York’s local governments.

DiNapoli: School Districts Should Take Further Steps to Protect Private Data

The increased use of mobile computing devices by school districts has put confidential student and school staff data at greater risk for theft and misuse, according to an audit released last Friday by State Comptroller Thomas P. DiNapoli.

DiNapoli: Tax Collections $163 Million Below Projections

Tax collections through November of $39.2 billion were $163.4 million below the state’s estimates updated last month, and $702.4 million below initial estimates in April, State Comptroller Thomas P. DiNapoli said Wednesday in releasing the November cash report.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of:

the Mechanicville City School District; and

the Riverhead Charter School.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the audits of:

the Village of Fort Edward;

the Town of Livingston;

the Town of Montgomery;

the Niagara County Soil and Water Conservation District;

the Town of Oakfield;

the Town of Olean;

the Town of Stillwater;

the Town of Unadilla;

the Town of Waterloo; and

the West Webster Volunteer Fireman’s Association, Inc.

California to implement amended pregnancy regulations

California to implement amended pregnancy  regulations Source: Wolers Kluwer’s Employment Law Daily  [ http://www.employmentlawdaily.com/ ] “Several noteworthy changes are in store for California employers when revised pregnancy regulations issued by the California Fair Employment and Housing Commission  take effect on December 30. The state’s Office of Administrative Law approved the changes on November 30 following an interactive process that included public feedback. “Definitions are changed significantly, starting with a more detailed definition of “disabled by pregnancy.” Lactation is specifically included as a “condition related to pregnancy, childbirth, or a related medical condition.” A “perceived pregnancy” is protected and is defined. “Four months”—the duration of available leave—is also revised in order to clarify how to calculate leave. The definition of health care provider is expanded as well. “The new regulations clearly articulate the employer’s duty to reasonably accommodate an employee’s pregnancy. Additionally, they change employers’ obligations regarding reinstatement of an employee after pregnancy leave. Specifically, for an employer to justify not reinstating an employee to a comparable position after  pregnancy leave, it must prove either: A. that the employer would not have offered a comparable position to the employee if she would have been continuously at work during the pregnancy disability leave or transfer period, OR B. that there is no comparable position available. “Further, the regulations clarify employers’ health care coverage obligations under pregnancy leave (applicable to employers with five or more full or part-time employees) and under the California Family Rights Act (applicable to employers with 50 or more employees). The time that an employer maintains and pays for group health coverage during pregnancy disability leave must not be used to meet an employer’s obligation to pay for 12 weeks of group health coverage during leave taken under CFRA. This is true even where an employer designates pregnancy disability leave as family and medical leave under FMLA. The entitlements to employer-paid group health coverage during pregnancy disability leave and during CFRA are two separate and distinct entitlements.”  The full text of the approved regulations can be found at http://www.fehc.ca.gov/act/pdf/pregnancyregulations/Approved_Preg_Regs_11_30_12.pdf.

The Ten Most Popular Administrative Law Blawgs For All Times [as of December 20, 2012]

The Ten Most Popular Administrative Law Blawgs For All Times [as of December 20, 2012]

Below, listed in rank order by “Popularity for all time” are the top 10 Administrative Law Blogs so classified by Justia on December 20, 2012 with Internet links to their most recent postings..

1. New York Public Personnel Law

Dec 19

Backward-looking right of access claim

Dec 18

Workers’ Compensation Board’s finding that the injured volunteer firefighter’s condition had not changed mandates the continuation of the benefits being provided pursuant to the Volunteer Firefighters’ Benefit Law

Dec 17

Failing to file a timely Article 78 petition bars consideration of the merits of the complaint

2. Administrative Law Prof Blog

Oct 29

Good class discussion

Oct 22

Types of regulatory strategies, and does the third type work?

Oct 21

Historical and ethical perspectives on regulation

3. bevlog

Dec 11

Is Wine Vegan?

Nov 19

Nobama Beer

Nov 6

Chokin’ Chicken Vodka

4. Sheri R. Abrams Disability Blog

Dec 14

Are curb ramps required to have detectable warnings?

Dec 7

Social Security Announces New Compassionate Allowances Condition

Dec 6

When can an employer ask an applicant to “self-identify” as having a disability?

5. Life Sciences Legal Update

Dec 13

China Life Sciences and Health Industry Client Briefing - November 2012 (December 13, 2012)

Nov 30

OCR Releases Overdue Guidance on De-identifying Protected Health Information

Nov 27

Massachusetts Releases Final Regulations, Restores Annual "Sunshine" Reporting Requirement for Drug/Device Manufacturer

6. Aviation and Airport Development…

Nov 26

FAA Finally Issues Guidance on Plume Hazards to Aircraft from Power Plants - Or Does It?

Nov 19

Public Strongly Favors "Cap and Trade" Carbon Emissions Program

Nov 13

"Cap and Trade" in Greenhouse Gas Emissions Launched in California

7. OFAC SDN Sanctions Removal Lawyers

Nov 14

Specially Designated Narcotics Trafficking Kingpin [SDNTK] Entries Added to OFAC’s SDN List on November 14, 2012

Nov 14

Democratic Republic of the Congo [DRCONGO] Entries Added to OFAC’s SDN List on November 13, 2012

Nov 6

“US Slaps Sanctions on Haqqani Network Suicide Operations Chief”

8. California Attorneys Representing…

Oct 1

Tracy Green Quoted On Physician Accused Of Second Degree Murder And Excessive Prescribing Due To Accidental Overdoses by Patient

Sep 14

Los Angeles Times Reports On Lawyers Who Defend Doctors - Attorney Tracy Green Quoted

Aug 8

Can Hospital Chains Improve the Medical Industry? Interesting Article In The New Yorker

9. Employee Benefits Legal Blog

Dec 17

PPACA and Penalties: State v. Federal Exchange

Dec 10

Are You Part of a Control Group? It Counts When Counting

Dec 5

Is My Health Plan Discriminatory? Insured Plans and PPACA

10. JOTWELL - The Journal of Things We…

Dec 19

Is Arbitration Lawless?

Dec 17

An Evolving Administrative Law of Targeted Warfare (and the Power of Londoner/BiMetallic)

Dec 12

An Unexpected Remedy: Eminent Domain as a Potential Solution to the Mortgage Crisi

The Dormitory Authority of the State of New York (DASNY) annual report is now available on the Internet

The Dormitory Authority of the State of New York (DASNY) annual report is now available on the Internet

Source: Dormitory Authority of the State of New York 

Dormitory Authority of the State of New York [DASNY] Chair Alfonso L. Carney, Jr., and DASNY President Paul T. Williams, Jr., advise that DASNY's 2012 Annual Report is now available on the Internet at      www.dasny.org/2012AnnualReport * 

The Report highlights DASNY's efforts to fulfill its commitment to excellence, innovation and diversity while serving the needs of its public and private clients during 2012.

This includes DASNY’s emphasis on “green construction.” in its pipeline involving 763 projects for health care, higher education and other public purposes with an estimated value of more than $6 billion. For example, residence hall projects at State University of New York campuses at Brockport and Oswego earned Leadership in Energy and Environmental Design [LEED] Gold certifications while this year DASNY’s headquarters in Albany was awarded LEED Gold status for its existing facilities.

A LEED Certification reflects an independent, third-party evaluation and verification that a building, home, or community was designed and built using strategies aimed at achieving high performance in key areas of human and environmental health: sustainable site development, water savings, energy efficiency, materials selection, and indoor environmental quality.

*N.B.  In accordance with its "green policies", DSANY's 2012 Annual Report is only available as a PDF file posted on the Internet. 

Proving that a work-connected injury suffered as the result of an unexpected or unforeseeable event is critical to the approval of an application for accidental disability retirement benefits

Proving that a work-connected injury suffered as the result of an unexpected or unforeseeable event is critical to the approval of an application for accidental disability retirement benefits
Suppa v DiNapoli, 2012 NY Slip Op 08622, Appellate Division, Third Department

Frank J. Suppa, a police detective, suffered a back and knee injury when, in the course of his conducting a surveillance of a suspect, stones on the retaining wall on which he was standing shifted causing him to fall. 

Contending that he was permanently disabled from performing his duties as a detective as the result of his fall, Suppa filed an application with the New York Employees' Retirement System for accidental disability retirement benefits and, in the alternative, an application for performance of duty disability retirement benefits.

The Retirement System found that Suppa was permanently disabled from performing his duties as a police detective as a result of his injuries and his application for performance of duty retirement benefits was approved.

As to Suppa’s application for accidental disability retirement benefits, the System denied that application, ruling that the incident leading to his disability “did not constitute an accident within the meaning of the Retirement and Social Security Law.”

The Appellate Division agreed, noting that the applicant ”bears the burden of proving that his [or her] injury was accidental” and the Retirement System’s determination to the contrary will be sustained “if supported by substantial evidence."

An accident within the meaning of the Retirement and Social Security Law, explained the court, is "a sudden, fortuitous mischance which is unexpected and out of the ordinary.”

Further, said the Appellate Division, "an incident does not qualify as an accident justifying the award of accidental disability retirement benefits where the injury results from an expected or foreseeable event arising during the performance of routine employment duties."

Suppa had testified that he was performing a routine job duty when he was injured and that he was aware that the stone wall that he climbed upon was made up of "large loose boulders" that were merely piled on top of each other, without anything holding the boulders together.

Under these circumstances, said the court, the possibility that one of the boulders would come loose under Suppa's weight as he was standing on it was a foreseeable event. 

Accordingly, substantial evidence supported System's determination that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08622.htm

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Backward-looking right of access claims

"Backward-looking" right of access claims

Sousa v Marquez, US Court of Appeals, Second Circuit, Docket No. 12-403-cv

The Supreme Court has categorized right-of-access claims as either forward-looking or backward-looking.

In the forward-looking category "are claims that systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits at the present time" (see Christopher v. Harbury, 536 US 403). In “forward-looking” claims, official action is presently denying an opportunity to litigate.

“Backward-looking” right of access claims involve claims not in aid of a class of suits yet to be litigated but of specific cases that cannot now be tried (or tried with all material evidence) no matter what official action may be in the future. To prevail in a backward-looking claims action, the plaintiff must show that the defendants caused the plaintiff to lose a meritorious claim or a chance to sue on a meritorious claim.

Bryan Sousa, a former employee at the Connecticut Department of Environmental Protection, sued Devin Marquez, a staff attorney at the Connecticut Department of Administrative Services, in an action characterized by the Second Circuit as a “backward- looking” right of access claim. Sousa contended that he did not win his earlier employment-related suit because of false statements and deliberate omissions in an investigative report issued by Marquez.

The Second Circuit rejected Sousa’s appeal from an adverse district court ruling, explaining that:

[1] “Even assuming that so-called ‘backward looking’ right-of-access claims are viable in this Circuit, such claims cannot proceed if the plaintiff, asserting that the government concealed or manipulated relevant facts, was aware of the key facts at issue at the time of the earlier lawsuit. In other words, “A plaintiff with knowledge of the crucial facts and an opportunity to rebut opposing evidence does have adequate access to a judicial remedy” available to him or to her in the course of that litigation.

[2] The District Court’s opinion in the prior suit demonstrates that the Court did not rely on statements or omissions in Marquez’s report and, therefore, Sousa has not shown that Marquez’s purported actions caused or resulted in a violation of his rights.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/d78e4359-b8c7-4710-b019-28febe041619/1/doc/12-403_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d78e4359-b8c7-4710-b019-28febe041619/1/hilite/

Workers’ Compensation Board’s finding that the injured volunteer firefighter’s condition had not changed mandates the continuation of the benefits being provided pursuant to the Volunteer Firefighters’ Benefit Law

Workers’ Compensation Board’s finding that the injured volunteer firefighter’s condition had not changed mandates the continuation of the benefits being provided pursuant to the Volunteer Firefighters’ Benefit Law
Giudi v New Paltz Fire Dept., 2012 NY Slip Op 08621, Appellate Division, Third Department

The genesis of this appeal was volunteer firefighter Jason Giudi's claim that he had suffered a head injury in the line of duty that adversely affected his ability to continue to work in his job in his regular capacity which resulted in a reduction in his income.

The Workers' Compensation Board ultimately found that the Giudi was permanently disabled and had been deprived of more than 75% of his earning capacity. Accordingly, the Board awarded Guidi benefits pursuant to Volunteer Firefighters' Benefit Law §10(1).*

Several years later the case was reopened by the Workers’ Compensation Board to address the New Paltz Fire Department's contention that Giudi 's condition had changed within the meaning of Volunteer Firefighters' Benefit Law §13** and thus Giudi’s entitlement to benefits should be reconsidered.

The Board sustained its earlier determination that Giudi was, and continued to be, permanently disabled. The Fire Department then challenged the Board’s decision but the Appellate Division dismissed its appeal.

Noting that substantial evidence supports the Board's finding that Giudi "remains unable to continue performing either the employment duties usually and ordinarily performed at the time of injury or those required by a reasonable substitute,” the Appellate Division affirmed the Board’s decision.

According to the ruling, Giudi testified that his work as a chef required substantial amounts of education and training and he has been forced to perform less mentally demanding work since his injury.

Noting that a clinical neuropsychologist who examined Giudi had opined that Giudi's “cognitive impairments continued to prevent him from working as a chef or military police officer,” the court said that the Board was free to credit this evidence --  “which provided ample justification for its finding that [Giudi] continues to suffer from a disability that deprives him of more than 75% of his earning capacity.”

* §10 of the Volunteer Firefighters Benefit Law provides for the payment of benefits in the event a volunteer firefighter suffers a permanent partial disability benefits as a result of his or her suffering an injury in the line of duty.

** §13 of the Volunteer Firefighters Benefit Law provides for the reclassification of a disability upon proof that there has been a change in the claimant’s condition

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08621.htm

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

====================================

Failing to file a timely Article 78 petition bars consideration of the merits of the complaint

Failing to file a timely Article 78 petition bars consideration of the merits of the complaint
Gress v Brown, 2012 NY Slip Op 08564, Court of Appeals

In 2003, the Legislature enacted the Buffalo Fiscal Stability Authority Act (the Act) in consideration of the fact "that the city of Buffalo is facing a severe fiscal crisis, and that the crisis cannot be resolved absent assistance from the state."*

On April 21, 2004, the Buffalo Fiscal Stability Authority (BFSA) adopted its Resolution No. 04-35, which directed that "effective immediately, there shall be a freeze with respect to all wages, wage rates, and salary amounts for all employees of the City and all Non-exempt Covered Organizations, to the full extent authorized by the Act." 

This wage freeze, said the Court of Appeals, was intended "to prevent and prohibit any increase in wage rates, wages or salaries for any employee of the City or a Non-exempt Covered Organization," [emphasis supplied by the Court].

The Gress plaintiffs [Gress] were at-will, seasonal employees and commenced this class action alleging that the City violated the City of Buffalo's Living Wage Ordinance when it implemented BFSA’s Resolution 04-35. The Appellate Division agreed, holding that that the BFSA did not have the authority to freeze the wages of the Gress plaintiffs [see 82 AD3d 1654].

Significantly, Gress did not quarrel with the wage freeze generally but contested only its application to them through the BFSA's administrative action. Such a challenges, said the Court of Appeals, should have been raised by commencing a timely CPLR Article 78 proceeding naming BFSA as a respondent. Gress failed to file such a timely petition pursuant to Article 78 and was thus, said the court, barred from challenging the BFSA’s action or its authority to so act.

Rejecting the dissent’s argument that the BFSA, in fact, "had no authority to freeze the wages due the Gress plaintiffs pursuant to the Living Wage Ordinance," the majority ruled that “whether or not authorized to do so, the BFSA froze plaintiffs' wages and once this happened, the City and Mayor were bound by its action,” not having filed a timely challenge to such action.

* Public Authorities Law §3850-a

The decision is posted on the Internet at

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08564.htm

The penalty of termination imposed on petitioner was excessive in light of all the circumstances

The penalty of termination imposed on petitioner was excessive in light of all the circumstances
Principe v New York City Dept. of Educ., 2012 NY Slip Op 08568, Court of Appeals

The Court of Appeal, Judge Smith dissenting, said that Appellate Division [94 AD3d 43] “correctly determined that the penalty of termination imposed on petitioner was excessive in light of all the circumstances.”

The Appellate Division decided that “Given all of the circumstances, including the educator’s “spotless record as a teacher for five years and his promotion to dean two years prior to the incidents at issue,” the penalty excessive and shocking to [its] sense of fairness, citing the Pell Doctrine [Pell v Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222].”

NYPPL's summary of the Appellate Division’s ruling is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/search?q=Principe

The Court of Appeals’ ruling is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08568.htm

_____________________________

NYPER’s new e-manual A Reasonable Disciplinary Penalty Under the Circumstances - A Concise Guide to Penalties That Have Been Imposed on Public Employees in New York State Found Guilty of Selected Acts of Misconduct – is scheduled for publication in January 2013. For information about this e-manual send your e-mail to publications@nycap.rr.com with the word “Reasonable” in the subject line.

Claims that health impairments suffered by 9-11 first responders seeking benefits resulted from duties performed at the World Trade Center requires the pension fund to produce competent evidence to rebut the statutory presumption that such was the case

Claims that health impairments suffered by 9-11 first responders seeking benefits resulted from duties performed at the World Trade Center requires the pension fund to produce competent evidence to rebut the statutory presumption that such was the case

Bitchatchi v Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II,  2012 NY Slip Op 08566, Court of Appeals

The Administrative Code of City of New York §13-252.1[1][a]* provides, in pertinent part, that: “Notwithstanding any provisions of this code or of any general, special or local law, charter or rule or regulation to the contrary, if any condition or impairment of health is caused by a qualifying World Trade Center condition as defined in section two of the retirement and social security law, it shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by such member's own willful negligence, unless the contrary be proved by competent evidence, " [emphasis supplied by the court].

Addressing a number of appeals involving police officers who responded to provide assistance at the World Trade Center following the September 11, 2001 attacks in which two officers sought accidental disability retirement benefits [ADR] and the surviving spouse of another officer made a claim for line-of-duty death benefits, the Court of Appeals said that “The common issue presented is whether the pension fund respondents produced competent evidence to rebut the WTC presumption accorded to petitioners' claims” by law.

In this instance the court held that “that respondents did not meet their burden of disproving that the officers' disabilities or death were causally related to their work at the World Trade Center and related sites,” and thus the applications of two officers seeking [ADR] benefits and the claim of the surviving spouse of the third officer for line-of-duty death benefits should be granted.

The court explained that although a claimant filing for ADR benefits ordinarily has the burden of proving causation in an administrative proceeding, the Legislature's response to the World Trade Center tragedy was to enact a new statute creating a rebuttable presumption in favor of ADR benefits for police officers who performed rescue, recovery or cleanup operations at specified locations, including the World Trade Center and the Fresh Kills Landfill.

Accordingly, under the WTC presumption, the pension fund bears the initial burden of proving that a claimant's qualifying condition was not caused by the hazards encountered at the WTC site as the Legislature created the WTC presumption to benefit first responders because of the evidentiary difficulty in establishing that non-trauma conditions, such as cancer, could be traced to exposure to the toxins present at the WTC site in the aftermath of the destruction.

Hence, unlike ordinary ADR claimants, first responders need not submit any evidence — credible or otherwise — of causation to obtain the enhanced benefits. Nevertheless, the Legislature did not create a per se rule mandating ADR benefits for all eligible responders. Rather, it provided that a pension fund could rebut the presumption by "competent evidence."

In other words, said the Court of Appeals, unlike the typical application for disability benefits, a pension fund cannot deny ADR benefits by relying solely on the absence of evidence tying the disability to the exposure.

* Similar provisions extend the WTC presumption to other classes of first responders, i.e., Administrative Code of City of NY §13-353.1 [firefighters]; Retirement and Social Security Law §363-bb[h] [state police]; and Retirement and Social Security Law §605-b[d] [sanitation workers]. The presumption also applies where a police officer later dies and death benefits are sought (Administrative Code of City of NY §3-252.1 [[4]).

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08566.htm

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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