COLA pension increases affect Section 207-a retirement benefits

COLA pension increases affect Section 207-a retirement benefits
Wise v Jennings, 290 AD2d 702, 703, lv denied 97 NY2d 612

Section 207-a of the General Municipal Law provides that firefighters who retire after suffering a work-connected disability are to receive employer-paid supplements to their retirement allowance until their mandatory age of retirement.

The amount of the supplement: the difference between their retirement allowance and the amount that they would have earned as active firefighters had they not retired for disability, including adjustments for negotiated salary increases.

When the legislature provided for an automatic cost of living adjustment [COLA] to retirees, including those retired for accidental or service connected disability, the City of Albany advised its retirees receiving Section 207-a supplements that it would recompute and reduce their supplements to reflect the increase they received as a result of the COLA adjustment. William Wise, a retired City of Albany firefighter and President of the Albany Permanent Professional Firefighters Retirees' Association, sued the City contending that the City could not withholding any portion of the supplemental income payments as an adjustment for the amount that they receive as a COLA increase. A Supreme Court justice dismissed Wise's petition and he appealed.

Pointing out that General Municipal Law Section 207-a was intended only to affect the source, not the amount, of payments made to disabled firefighters, the Appellate Division affirmed the lower court's ruling.

The Appellate Division said that COLA's legislative history demonstrates that it constituted a clear policy directive to offset the negative effects of inflation experienced by public retirees whose pension benefits were eroded as a result of annual increases in the cost of living without commensurate increases in benefits. Accordingly, the court reasoned, "[a]s a clear pension supplement, we agree that since the payment of the adjustment is dependent upon the right to receive a disability retirement allowance, the COLA adjustment must be found to be generated through that income stream."

As Section 207-a only permits the employer to supplement the "difference between the amounts received under such allowance or pension and the amount of the firefighters' regular salary or wages [had he or she remained an active firefighter]," the deduction of an amount equal to the COLA adjustment from the firefighters' Section 207-a supplement was proper. This determination, said the court, is consistent with the underpinnings of Section 207-a, which is to ensure that permanently disabled firefighters receive an amount equal to that of active firefighters holding the same position and rank with only the income source and not the amount affected.

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Allegations of defamation of the employee follow postings made on the employer's web site

Allegations of defamation of the employee follow postings made on the employer's web site 

Firth v State of New York, NYS Court of Appeals, 98 NY2d 365

From time to time, an employee will sue his or her public employer contending that he or she was defamed because of the employer's dissemination of information concerning his or her performance of official duties that the individual considers demeaning or embarrassing.

Among the most common "defamation" claims are those involving an individual alleging that internal communications between administrators or between an employee and an administrator or a third party concerning the worker contains libelous or defamatory statements.*

As a general rule, unless the individual is able to demonstrate "publication" and prove "malice," the courts usually dispose of such cases involving a public employer by applying the doctrine of "qualified immunity."

The electronic age has provided an additional potential source of litigation based on allegations that the publication of certain information constitutes libel.

Many public jurisdictions maintain a "web-site" to disseminate information to the public. The Firth decision concerns a situation where placing a report critical of an individual resulted in the individual suing the public entity for defamation.

George Firth, formerly employed by the New York State Department of Environmental Conservation as its Director of the Division of Law Enforcement, sued the State, alleging that it defamed him when it placed a report issued by the Office of the State Inspector General critical of Firth's managerial style and the procedures he used in procuring weapons for the agency on State-maintained web-sites available to the public.

At a press conference, the Office of the State Inspector General distributed a report entitled The Best Bang for Their Buck, in which Firth's management style was criticized. On the same day, the State Education Department posted an executive summary of the report with links to the full text of the report on its Government Locator Internet site.

As characterized by the Court of Appeals, the central issue in Firth's appeal concerned how "defamation jurisprudence, developed in New York courts in connection with traditional, i.e., printed, mass media communications, applies to communications in a new medium -- cyberspace -- in the modern Information Age" insofar as the statute of limitations for bringing such a law suit is concerned.

The court's conclusion: the single publication rule is applicable to allegedly defamatory statements that are posted on an Internet site and an unrelated modification of information displayed in another part of the same Web site does not constitute a republication for the purpose of determining the one-year statute of limitations for defamation actions set out in Section 215(13) of the Civil Practice Law and Rules.

In effect, the statute of limitations begins to run when the statement alleged to have disparaged the individual is first made available on the Internet.

Although "republication" will "retrigger" the running of the statute of limitations, the Court of Appeals ruled that "[t]he mere addition of unrelated information to a Web site cannot be equated with the repetition of defamatory matter" as a separate publication.

Consider another aspect of the electronic distribution of information electronically -- the use of E-mail as a vehicle for transmitting statements alleged to disparage an individual. This issue was not addressed by the court in the Firth decision.

Clearly the date on which the E-mail was initially transmitted would trigger the running of the statute of limitations in such cases. But what is the effect of the "forwarding" of E-mail?

Will the courts consider "forwarding" an E-mail by the recipient to another individual to be a "republication" for the purposes of determining the timeliness of an action? Still another element to consider -- may the "forwarder" be sued for the alleged libel?

If the courts deem each "forwarding" [and, perhaps, the "forwarder"] of an E-mail to be an independent and unique "republication" for the purposes of determining the running of the statute of limitations and liability, it may be that alleged disparagement by E-mail may never become stale insofar as bringing a viable law suit is concerned. Undoubtedly these issues will be presented to the courts for resolution because of the proliferation electronic communication and dissemination of information in the workplace.

* Murphy v Herfort, 140 A.D.2d 415, is an example of litigation resulting from communications between administrators while Missek-Falkoff v Keller, 153 AD2d 841, is an example of a case in which one employee sued another employee claiming that the contents of a memorandum from the second employee to a superior concerning a "problem" with the coworker constituted libel. Allegations of defamation may arise following an employee's former employer supplying information to a prospective employer of the individual in response to a request for "references." Buxton v Plant City, 57 LW 2649, provides an example of this type of complaint.

Failure to possess a valid license or certificate required by law to perform the duties of the position held a valid basis for terminating the incumbent from the position

Failure to possess a valid license or certificate required by law to perform the duties of the position held a valid basis for terminating the incumbent from the position

Lutz v Krokoff, 2012 NY Slip Op 22083, Supreme Court, Albany County, Justice Michael C. Lynch

An Albany, New York police officer’s driver’s license was revoked as the result of an off-duty incident.

The Chief of Police wrote the officer indicating that possession of a valid driver’s license “is a minimum qualification for [a] Police Officer in the City of Albany” and offered him “the opportunity to present ...written documentation regarding the status of [his] license.…” The officer told the Chief that his driver's license was "currently suspended pending prosecution and revoked ... but that he had filed a “Notice of Appeal.”

Chief Krokoff terminated the police officer from his position "effective immediately" explaining:

“In that you no longer hold a valid State driver's license allowing you to lawfully operate a motor vehicle in this State, you no longer meet a critically important minimum qualification of a Police Officer in the City of Albany.”

The officer sued, contending that the Chief’s determination to terminate his employment based on his failure to possess a valid driver's license was affected by an error of law and was arbitrary and capricious. The officer also argues that the determination was without a rational basis and arbitrary and capricious because "no other police officer who has had his or her license temporarily suspended or revoked has been terminated ...for the failure to possess a valid New York State driver's license".

Addressing the issue of “due process,” the court said that “A pre-termination hearing pursuant to Civil Service Law §75 or, in certain cases, a collective bargaining agreement, is not necessarily required where a public employee becomes ineligible or unqualified for continued employment,” citing New York State Office of Children and Family Services v. Lanterman, 14 NY3d 275 and Felix v. NY City Dep't of Citywide Admin. Servs., 3 NY3d 498.

Justice Lynch, referring to Felix, commented that in that case the Court of Appeals distinguished between conduct that renders an employee ineligible to continue employment (i.e.the failure to maintain a residence in the City as required by the City Code) with conduct constituting misconduct.

Only action in the nature of discipline is subject to pre-termination review pursuant to the Civil Service Law or a similar law, or a disciplinary procedure set out in a collective bargaining agreement. 

In contrast, where an individual is required by law to posses a valid license or “professional certification” in order to lawfully perform the duties of the position was the individual’s failure to produce evidence of his or her possession of the required license or certification meant that he or she was not qualified to hold the position rather than “incompetent,” in a pejorative sense, to perform the duties of the position.*

In this instance, said the court, the issue was whether Chief Krokoff's determination to summarily terminate the police officer based on his failure to posses a valid New York State driver's license was made in violation of lawful procedure, affected by an error of law or was arbitrary and capricious or an abuse of discretion.

The question presented here did not implicate issues concerning the police officer’s performing the duties of his job satisfactorily or allegations of misconduct or competency. Rather, the police officer's ability “to operate a vehicle legally (i.e. with a valid license) is “a defined standard that is not related to job performance.” Justice Lynch concluded that once an officer loses his or her driver’s license, he or she is no longer able to perform the duties of his or her job lawfully. Whether that officer has engaged in misconduct or failed to competently perform such duties was not at issue.

In Justice Lynch’s view, the maintenance of a valid driver's license was a qualification for employment as a police officer in the City of Albany. As such, the Chief's decision to terminate the police officer without a hearing because he was unable to produce evidence of having a valid driver’s license was not arbitrary, capricious, contrary to law or a violation of due process.

As to the police officer’s claim of “disparate treatment” because "no other police officer who has had his or her license temporarily suspended or revoked has been terminated ... for the failure to possess a valid New York State driver's license," the court noted that Chief Krokoff had indicated that “since he became Chief of Police … no other police officer has been similarly situated to [the police officer] insofar as not having a valid driver's license" and the officer “has not demonstrated otherwise.”

Justice Lynch denied the police officer’s petition and dismissed his complaint.

* In Martin ex rel Lekkas, 86 AD2d 712, the appointing authority had terminated Lekkas from his position because he did not hold a valid New York State license to practice medicine. However, Lekkas served in an administrative capacity and did not practice medicine. The court held that only where the duties of the position required the incumbent to be licensed may the lack of such a license be grounds for termination.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_22083.htm

Health insurance benefit enjoyed by retired individuals not subject to collective bargaining between the employer and the employee organization absent the consent of all the parties

Health insurance benefit enjoyed by retired individuals not subject to collective bargaining between the employer and the employee organization absent the consent of all the parties

DiBattista v County of Westchester, 35 Misc3d 1205

The action involved some 1,600 individuals who retired from Westchester County as their employer between 1993 and 2004.

Between 1993 and 2001, two collective bargaining agreements were executed between CSEA and Westchester County. These agreements, among other things, provided for certain medical health insurance benefits. Those provisions remained in effect until May 2004 when a new agreement was made.

The 2004 agreement changed the health benefits available to active employees and Westchester County decided that such changes should also be imposed on its then retired employees. The County indicated that it had been its policy to treat retirees the same as active employees whenever a new collective bargaining agreement negotiated.

The retired employees sued, contending the County could not modify their health insurance benefits to reflect the benefits it and CSEA had negotiated on behalf of active employees in the collective bargaining unit when such modification resulted in an increase in their medical and health insurance costs.

Justice Lefkowitz agreed, ruling:

1. “Absent consent of all parties, a union does not represent retirees when it negotiates with an employer in collective bargaining;

2. “Vested retirement rights may not be altered without the pensioner's consent;

3. “Where, as here, there is no durational limit in the immediate prior collective bargaining agreements as to retiree health insurance benefits 'it is unlikely that such benefits, which are typically understood as a form of delayed compensation for past services, would be left to the contingencies of future negotiations';

4. “Retiree benefits 'carry with them an inference that they continue so long as the prerequisite status is maintained'; and

5. “This inference trumps any general duration clause as to the life or termination of the agreement.”

Deciding in favor of the retirees, Justice Lefkowitz held that the retirees’ health insurance benefits set out in the prior collective bargaining agreements survived the 2004 negotiated agreement and could not be modified without their consent, citing Hudock v. Village of Endicott, 28 AD3rd 923 and other decisions.

N.B. The County appealed Justice Lefkowitz's decision but subsequently decided to withdraw its appeals. The Appellate Division granted the County’s application to withdraw the appeals [DiBattista v County of Westchester, Slip Opinion No: 2010 NY Slip Op 60446(U), Appellate Division, Second Department, Motion Decision].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_52731.htm

A party seeking to set aside a stipulation in a judicial or quasi-judicial proceeding must demonstrate “good cause” such as fraud, overreaching, duress, or mistake

A party seeking to set aside a stipulation in a judicial or quasi-judicial proceeding must demonstrate “good cause” such as fraud, overreaching, duress, or mistake

Sheng v State of N.Y. Div. of Human Rights, 2012 NY Slip Op 02310, Appellate Division, Second Department

The New York State Division of Human Rights dismissed Juan Y. Sheng’s  administrative complaint alleging unlawful discrimination after deterimining that there was “no probable cause.” Subsequenlty Sheng asked  Supreme Court to vacate a stipulation discontinuing the proceeding before the Division with prejudice. Supreme Court denied Sheng’s petition.

The Appellate Division dismissed Sheng’s appeal, explaining that stipulations disposing of proceedings and actions "are favored by the courts and are not to be lightly set aside, especially where, as here, the party seeking to vacate the stipulation was represented by counsel." Further, said the court, A party seeking to set aside such a stipulation will be granted relief only upon a showing of good cause sufficient to invalidate a contract, such as fraud, overreaching, duress, or mistake,” citing McCoy v Feinman, 99 NY2d 295.

Concluding that Supreme Court properly determined that Sheng failed to demonstrate good cause to set aside the stipulation discontinuing the proceeding with prejudice, the Appellate Division commented that “The failure of [Sheng’s]  attorney to ascertain or understand the legal effect of a discontinuance with prejudice was not a basis upon which to vacate the sitpulation.”

Further, the court said that Sheng submitted no evidence in support of her claim of fraudulent inducement based on opposing counsel's failure to inform her counsel of the legal ramifications of a discontinuance with prejudice. In the words of the Appellate Division, “opposing counsel owed no duty to disclose her understanding of those legal ramifications” to Sheng or Sheng’s attorney.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02310.htm

The denial of a FOIL request by an entity subject to the Freedom of Information Law may not be based on the purpose for which the document or record was produced or the function to which it relates

The denial of a FOIL request by an entity subject to the Freedom of Information Law may not be based on the purpose for which the document or record was produced or the function to which it relates
Hayes v Chestertown Volunteer Fire Co., Inc., 2012 NY Slip Op 02367, Appellate Division, Third Department

The Chestertown Volunteer Fire Company, Inc. [CVFC] partially denying Christine A. Hayes’s Freedom of Information Law requests, contending that it was a private corporation not subject to the requirements of FOIL.

Ultimately Hayes initiated a CPLR Article 78 proceeding seeking to compel CVFC to comply with numerous FOIL requests and the Open Meetings Law, as well as an award of counsel fees and litigation costs.

Supreme Court held that the Open Meetings Law was not applicable to the meetings held by CVFC and ordered CVFC to submit the documents requested by Hayes to the court for an in camera review so that it could redact any records containing "non-firematic" information. Hayes appealed.

The Appellate Division, agreeing with Hayes, said that “to the extent Supreme Court's FOIL determination differentiated between records concerning public, or ‘firematic,’ and private functions of CVFC, this was error.”  Although Supreme Court found, and CVFC conceded, that CVFC is an "agency" subject to the requirements of FOIL, it was incorrect in determining that “because CVFC engages in both governmental and private activities, the records of its nongovernmental functions are not subject to FOIL's disclosure requirements.”

Commenting that nothing in the statute itself and nothing in the legislative history suggesting that the Legislature intended such content-based limitation in defining the term "record," the Appellate Division said that the Court of Appeals has consistently held that "FOIL's scope is not to be limited based on 'the purpose for which the document was produced or the function to which it relates,'" citing Westchester Rockland Newspapers v Kimball, 50 NY2d at 581.

Having determined that CVFC is an "agency" subject to FOIL, the Appellate Division said that Supreme Court was required to order disclosure of the requested records — without regard to whether they related to governmental or nongovernmental functions — unless one of the exceptions set forth in Public Officers Law §87 (2) was applicable.” Noting that CVFC had not claimed the benefit of any FOIL exemption,* "it must make the requested records available” to Hayes.

The Appellate Division, however, said that it was not persuaded that Supreme Court erred in denying Hayes' request for counsel fees and litigation costs. Explaining that "Reasonable counsel fees 'may' be awarded by the court in a FOIL proceeding where the litigant has 'substantially prevailed,' where the court finds that the record involved was 'of clearly significant interest to the general public' and where 'the agency lacked a reasonable basis in law for withholding the record,'" the court said that even where all of the statutory requirements have been met, "the decision whether to award counsel fees rests in the discretion of the court and will not be overturned in the absence of an abuse of such discretion." 

Although Hayes had “substantially prevailed,” characterizing the documents sought as “not of significant interest to the general public, the Appellate Division decided that Supreme Court had not abused its discretion in denying Hayes' request for attorney fees and costs.

As to Hayes’ complaint concerning CVFC's alleged violation of the Open Meetings Law, the Appellate Division held that although “CVFC is an ‘agency’ under FOIL, it is not a ‘public body’ subject to the Open Meetings Law” and thus its monthly meetings need not be open to the public.

The Open Meetings Law, said the court, requires that "[e]very meeting of a public body … be open to the general public," citing Public Officers Law §103[a], and defines "public body" as "any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof."

While there was no dispute that the Fire District, as a political subdivision of the State and thus a "public body," is subject to the Open Meetings Law, the Appellate Division noted that, in contrast, CVFC is a private, not-for-profit corporation organized as a charitable organization under the Not-For-Profit Corporation Law and governed by its constitution and bylaws.** 

As the record established that, unlike the meetings of the Board of Fire Commissioners of the Fire District where the official government business of the Fire District is conducted, the meetings of CVFC relate to its internal affairs and the social, recreational and benevolent activities that it undertakes in furtherance of its charitable purpose. Further, said the court, CVFC receives no public funds for such events and activities, which are instead supported through fundraising and donations from private sources. Accordingly, the Appellate Division concluded that CVFC is not a "public body" under the Open Meetings Law.

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

** See N-PCL §§201 and 1402[e][1].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02367.htm

If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration

If the CBA provides for the arbitration of alleged contract violations, unless there is a statutory, constitutional or public policy prohibition barring such arbitration courts cannot stay the arbitration

County of Rockland v Civil Serv. Empl. Assn., Inc., 2012 NY Slip Op 01815, Appellate Division, Second Department

The Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA), filed a grievance on behalf of one of its members in the collective bargaining unit and shortly thereafter filed a similar grievance on behalf of another of its members in the unit. Both grievances filed by CSEA alleged that Rockland County had violated certain provisions of the Collective Bargaining Agreement [CBA] between CSEA and the County when it assigned per diem employees to perform certain work instead of giving those assignments to regular full- and part-time employees in the collective bargaining unit.

Rockland denied the grievances and ultimately CSEA demanded that the grievances be submitted to binding arbitration.

Rockland County filed an Article 75 petition in Supreme Court seeking a court order permanently staying the arbitration. Supreme Court granted its petition and permanently stayed the arbitration of the grievances. The Appellate Division reversed the lower court’s order.

The Appellate Division said that in the public sector context, determining whether a grievance is arbitrable requires a court to first determine whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance.

If the demand for arbitration meets this test, then the court must then determine "whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement."

The Appellate Division said that inasmuch as the grievances allege that Rockland County violated certain provisions of the CBA, and the CBA contains a procedure to arbitrate "any alleged violation, misrepresentation, or inequitable application of [the CBA]," the parties have agreed to arbitrate the grievances.

Further, noted the court, Rockland’s allegation that CSEA’s demand for arbitration was untimely is an issue to be resolved by the arbitrator and not the courts.

Thus, said the Appellate Division, Supreme Court erred in granting the County’s petition and permanently staying the arbitration. 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01815.htm

Removal from public office

Removal from public office

Warren v Bielecki, 2012 NY Slip Op 01037, Appellate Division, Fourth Department

Although this action seeking to remove two persons from public office pursuant to Public Officers Law §36 was dismissed as moot as the individuals targeted for such removal no longer held public office, the Appellate Division commented that had it consider the matter on its merits if would have dismissed the petition seeking such removals.

The court noted that based on the findings of fact made by a referee it had appointed, there were insufficient grounds upon which to remove either individual from office pursuant to Public Officers Law §36.

Removal from public officer pursuant to Public Officers Law §36 requires evidence of "self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01037.htm

Lack of objective evidence of a disability supports rejection of employee’s application for disability retirement benefits

Lack of objective evidence of a disability supports rejection of employee’s application for disability retirement benefits

Hughes v Kelly, 2012 NY Slip Op 02393, Appellate Division, First Department

A New York City police officer, Jeffrey Hughes, filed an application for accidental disability retirement benefits. He also filed an application for ordinary disability retirement benefits. Police Commissioner Raymond Kelly rejected denied both applications and Hughes filed a petition pursuant to CPLR Article 78 seeking to overturn the Commissioner’s determination.

Supreme Court dismissed Hughes’ petition. Unanimously affirming the lower court’s ruling, the Appellate Division held that there was a rational basis the Commissioner’s determination.

The record, said the court, showed that after reviewing the medical evidence submitted by Hughes and the findings from its physical examinations of Hughes, the Medical Board concluded that "there was no objective evidence of a disability." Citing Matter of Appleby v Herkommer, 165 AD2d 727, the Appellate Division noted that “ It is well established that the court may not substitute its judgment for that of the Medical Board.”

The decision indicates that the Medical Board found that the deficits in Hughes’ “range of motion” were attributable to "voluntary guarding" and there were no objective radiographic studies presented showing any abnormal findings. Further, said the court, Board considered evidence submitted by Hughes' personal physicians and provided a rational explanation for its medical judgment.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02393.htm

Retrenchment in education: a national problem

Retrenchment in education: a national problem

Source: Selected items reported in newspapers and blogs and on television concerning teacher layoffs

Below are some of the articles concerning the reduction of teaching personnel in schools districts throughout the United States.

Montville schools brace for cuts; 18 teachers get layoff notices Norwich Bulletin By KALA KACHMAR The Montville school district has issued layoff notices to 18 teachers indicating the school board might not renew their contracts next year because of budget constraints. The state requires teachers be notified by May 1 if there is a ... See all stories on this topic »

Pontiac schools to lay off 95, including 43 teachers The Detroit News By Shawn D. Lewis Pontiac— The Pontiac Public School District will lay off 95 employees, including 43 teachers, beginning next month as part of its plan to eliminate a $24.5 million deficit. The cuts also include 27 school administrators, ... See all stories on this topic »

Zionsville economy, property values, quality teachers hang in the balance of ... Indianapolis Star The rejection resulted in the layoff of 21 teaching and counseling positions. Last year, the school district finally got a money-saving ballot measure passed when 74.5 percent approved a plan to refinance debt as a way to generate a few million dollars ... See all stories on this topic »

Ohio Federation of Teachers says Cleveland reform plan lacks any proven ... Plain Dealer Jackson's plan would possibly expand the school year or school day, set-up a merit pay for teachers, base layoffs on teacher performance and make getting rid of poor teachers easier. Seniority would no longer be the sole determining factor in layoffs ... See all stories on this topic »

Shrewsbury parents object to class sizes, talk override Wicked Local Although Superintendent Joseph Sawyer announced $2.3 million in cuts recently, including five teacher layoffs and the loss of 32 full-time positions, the district is still facing an $844000 budget gap. If the town does not receive increased revenue, ... See all stories on this topic »

979 fewer teachers in Maryland public schools The Star Democrat Half of the state's school systems have fewer teachers this year than last with a system's largest decline reaching 634. In recent years, some other states have undergone budget cuts sometimes resulting in thousands of teacher layoffs. See all stories on this topic »

School board works to close budget gap YNN After last week's recommendation of more than 100 teacher layoffs, Superintendent Joe Hochreiter laid out further possible reductions in special education services and facility usage. Hochreiter also challenged the district staff to make concessions if ... See all stories on this topic »

Littleton Educators' Association, School Committee reach tentative agreement Wicked Local ... would cost $16.9 million in fiscal 2013, including step-and-lane salary increases and increased special education costs, the School Committee has voted for a $16.3 million budget, which may incorporate both teacher layoffs and fee increases. See all stories on this topic »

Public speaks against Shenandoah Valley budget plan Republican & Herald SHENANDOAH - The proposed cuts in many programs and layoffs of teachers drew a standing-room-only crowd for Wednesday's regular meeting of the Shenandoah Valley Board of Education, with most speakers focusing on the planned loss of the music program. See all stories on this topic »

Schools Will Be Protected From Cuts Next Year, Walcott Says New York Times By Anna M. Phillips After years of painful cuts and threats of teacher layoffs, New York officials laid out on Tuesday a decidedly more optimistic portrait of financing for city schools next year, saying they expected that principals would have enough ... See all stories on this topic »

Massie tells City Council funding gap will bring more teacher layoffs Lynchburg News and Advance Interim Superintendent Larry Massie told Lynchburg City Council Tuesday the school division will cut more teachers, beyond the 34 positions already budgeted, if $3.7 million in additional funding does not materialize. Massie and School Board Chairman ... See all stories on this topic »

No teacher layoffs in Kingsburg schools Kingsburg Recorder By Mary Lou Aguirre Kingsburg Joint Union High School District teachers can enjoy their spring vacation knowing their jobs aren't in jeopardy. KHS Principal/Superintendent Randy Morris was asked if state cuts to education would result in layoffs for ... See all stories on this topic »

Hundreds protest layoffs at Baldwin Park Unified meeting Pasadena Star-News BALDWIN PARK - Dressed in red and armed with signs and chants, hundreds of parents, children and teachers Tuesday took on a half-mile march to a Baldwin Park Unified board meeting to protest recent teacher layoffs. The rally came on the heels of a ... See all stories on this topic »

Breaking Down the Budget: What Teacher Layoffs Would Mean Patch.com Patch File photo As the Three Village Central School District copes with losses in state aid combined with unfunded mandates and rising costs, administrators have proposed eliminating nine full-time equivalent teaching positions at the elementary level ... See all stories on this topic »

Fulton County Schools officials say budget could be balanced without layoffs ... Atlanta Journal Constitution By D. Aileen Dodd Fulton County Schools chief financial officer Robert Morales said Tuesday as the district prepares for budget season it is facing a $41.9 million funding gap that it could handle without teacher layoffs or furlough days. See all stories on this topic »

Students upset iPads bought for school while teachers are laid-off 39online.com Well originally there was the suggestion that the $18 million spent on the devices would be better served preventing teacher's layoffs. But since bond money can't be used for salaries, the argument of equality came up, suggesting that rather than ... See all stories on this topic »

School Board Approves 52 Layoff Notices, Technology Upgrades Patch.com By Carl Engelking As part of the planning process for the 2012-13 budget, the Menomonee Falls School Board on Monday approved the issuance of 52 preliminary layoff notices for teaching staff. School Board Member Gina Palazzari said the total number of ... See all stories on this topic »

Protest Planned at School Board Meeting for Teacher Layoffs Patch.com "There will be hundreds of parents, teachers and students wearing red to support our teachers." At least seven teachers are being laid off in Geddes Elementary, according to Mata. The school is located at 14600 Cavette Place, close to the intersection ... See all stories on this topic »

Dublin to lay off 16 teachers, cut 30 vacant positions Columbus Dispatch By Collin Binkley Two central Ohio school districts are finalizing layoffs for next school year after November levy failures. The Dublin school board voted tonight to cut 46 teaching jobs –– though only 16 people will lose jobs –– and 133 supplemental ... See all stories on this topic »

Republicans look to governor on teacher layoffs Pioneer Press By Megan Boldt State lawmakers who want to end seniority-based teacher layoffs put Gov. Mark Dayton's education chief on the hot seat Monday, March 26, on whether the Democrat's administration had any appetite to negotiate an agreement this year on ... See all stories on this topic »

Calif. Schools Urged to Change Layoff Policy to Improve Teaching NewsMax.com By Andy Butcher California school officials should change their staff downsizing policy to improve teaching and boost morale, according to the state legislative analyst's office. Procedures now base layoffs on seniority, which means that the most ... See all stories on this topic »

California Urged To Address Teacher-Layoff Policies Education Week News (blog) By Stephen Sawchuk on March 26, 2012 10:18 AM An analysis from California's Legislative Analyst's Office urges the state to consider revamping its teacher-layoff policies, including reducing the emphasis on seniority. The report makes nonpartisan ... See all stories on this topic »

Board Rejects Plan to Lay Off 500 Teachers, Staff Patch.com “Our teachers and paraprofessionals are our children's greatest asset. We really urge you to have some discussions with us before making a decision.” Staff members urged the board to reject the layoffs, and some questioned a proposal to implement a ... See all stories on this topic »

Lennox district shields teachers Daily Breeze By Rob Kuznia Staff Writer In a move that has the teachers union up in arms, the Lennox School District is making an end-run around "last-hired, first-fired" seniority laws, sending layoff notices to 100 of the district's 340 teachers, yet shielding ... See all stories on this topic »

Cleveland Teachers Union and Mayor Frank Jackson move closer to agreement on ... Plain Dealer (blog) The major accord came with how to handle the layoff and recall of teachers, with Jackson agreeing Monday to use the plan suggested by teachers last week. The compromise plan would rely on teacher evaluations first, and tenure and seniority second. See all stories on this topic »

Teachers' Support For Reform Depends In Part On Experience -- Gates/Scholastic ... Huffington Post "Layoffs shouldn't be based on seniority, and it's good to make it hard to let go of teachers who are doing well." Many of these reform measures involve shaking up the teaching profession in a way that makes promotion less dependent on experience. See all stories on this topic »

Teacher tenure bill may be unacceptable to Gov. Dayton Minnesota Public Radio They want public school administrators to be able to consider job performance, and not just years of service, when making decisions about teacher layoffs. Cassellius said she shares the goal of having effective teachers in every classroom. See all stories on this topic »

Clyde cuts teachers, mulls levy Fremont News Messenger Elchert said there is a possibility the district could receive more retirements in the summer, which could lead to some of the laid-off employees being called back to work. The board also approved reductions to several non-teaching positions. See all stories on this topic »  ========================= 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 is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.  =========================

In an Article 75 challenge to a §3020-a disciplinary decision, the court asks [1] does the award have evidentiary support? and [2] is the award arbitrary and capricious?

In an Article 75 challenge to a §3020-a disciplinary decision, the court asks [1] does the award have evidentiary support? and [2] is the award arbitrary and capricious?

Malone v Board of Educ. of East Meadow Union Free School Dist., 2012 NY Slip Op 02306, Appellate Division, Second Department

A tenured teacher was stopping cars exiting the driveway of East Meadow High School in order to distribute leaflets concerning ongoing contract negotiations between the teachers' union and the East Meadow Union Free School District.

When the teacher continued to distribute the leaflets after the school principal directed him to cease that activity, he was served with disciplinary charges pursuant to §3020-a of the Education Law alleging [1] misconduct for causing a hazardous condition and [2] insubordination for failing to obey the principal's directive.

Ultimately the charges proceeded to arbitration and the arbitrator found the teacher guilty of both charges. The teacher then filed an Article 75 petition seeking to vacate the arbitration award.

Supreme Court denied the teacher’s petition and dismissed the proceeding. The Appellate Division affirmed the Supreme Court’s ruling.

Noting that where the requirement to arbitrate is statutory, as is the case in a disciplinary action conducted pursuant to Education Law §3020-a* the arbitrator's determination is subject to "closer judicial scrutiny" under CPLR 7511(b) than it would receive had the arbitration been conducted voluntarily.

However, said the court, in an Article 75 proceeding a court determines only whether the award had evidentiary support and whether the award was arbitrary and capricious.**

Here, the Appellate Division decided that the determination of the arbitrator was based on the evidence proffered at the hearing. This, said the court, including the the teacher's testimony that he approached vehicles as they exited the driveway of the high school, which required him to cross in front of moving vehicles. This, according to the decision, "established the charge of misconduct by adequate evidence."

Further, said the court, “The testimony of both [the teacher] and the school principal that [the teacher] continued to distribute leaflets after being directed to cease this activity established the charge of insubordination by adequate evidence.”

Thus, concluded the Appellate Division, “the findings with respect to both charges were not arbitrary and capricious.”

* See Education Law §3020-a[3]

** Education Law §3020-a[5], “Appeal” provides that “ Not later than ten days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seven thousand five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02306.htm

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.

 =======================

Letter from an employer that has an adverse impact on an individual and he or she knows he or she is aggrieved thereby, triggers the running of the relevant Statute of Limitations

Letter from an employer that has an adverse impact on an individual and he or she knows he or she is aggrieved thereby, triggers the running of the relevant Statute of Limitations
Coleman v Prendergast, 2012 NY Slip Op 01814, Appellate Division, Second Department

Carl Coleman and his co-petitioners [Coleman] filed a petition pursuant to Article 78 of the CPLR Article 78 seeking a court review changes in the qualifications for their positions and a requirement that they take certain examinations.

Noting that such an action must be commenced "within four months after the determination to be reviewed becomes final and binding upon the petitioner," Supreme Court ruled that their petition was untimely.

According to the decision, Coleman received correspondence from the Rockland County Community College in December 2008 advising him that the qualifications for his position as Security Officers at College had changed. As a result he had to take “certain examinations” and the first of the examinations would be held in February 2009.

The Appellate Division noted that “This correspondence was a final and binding determination within the meaning of CPLR 217(1),” explaining that it had an impact upon Coleman and he knew he was aggrieved, whereupon it commenced the running of the statute of limitations.

However, the court noted, Coleman did not commence his Article 78 action until January 2010, which was beyond the applicable four-month statute of limitations of CPLR 217(1).

Thus, said the Appellate Division, “Supreme Court properly granted that branch of the [College’s] motion which was to dismiss the proceeding as time-barred, and dismissed the proceeding.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01814.htm

Background investigations of applicants for employment - Cybervetting

Background investigations of applicants for employment - Cybervetting

Source: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2012 AELE

Recently there have been a number of newspaper stories reporting that prospective employers are asking applicants for employment for their passwords to access their "private sites " on their social media accounts such as Facebook and Twitter in the course of the interview process.

AELE has posted an item on its website entitled Developing a Cybervetting Strategy - IACP & DoD guidance manual.

Focusing on using cybervetting in an employment in law enforcement setting, the posting asks: “May background investigators lawfully require applicants to furnish user IDs and passwords to reveal privacy-protected areas on social media web pages?” 

AELE conclusion: Cybervetting may be used in screening applicants for employment in law enforcement positions and notes that it recently participated in national focus group meetings involving police chiefs, attorneys, psychologists and participants from other disciplines.

A report, Developing a Cybervetting Strategy for Law Enforcement, is posted on the Internet at: http://www.iacpsocialmedia.org/Portals/1/documents/CybervettingReport.pdf 

The report contains material that may be applicable in settings other than those involving the employment of law enforcement personnel.

N.B. AELE describes itself as "an extraordinary and unique resource, with free publications and online back issues since 2000." AELE has a searchable library of more than 32,000 case digests organized into 700 + indexed topics dating back to 1975. AELE states that there are no advertisements, tracking "cookies" or popups on its website. Users do not have to preregister and there is no time limit on research sessions. The contents of its online law library may be copied and pasted, saved or printed (except for commercial purposes) by users. AELE has a free search tool covering its database..

The Triborough Doctrine could continue expired Taylor Law contract provisions until a new contract is ratified notwithstanding statutory provisions to the contrary

The Triborough Doctrine could continue expired Taylor Law contract provisions until a new contract is ratified notwithstanding statutory provisions to the contrary
City of Oswego v Oswego City Firefighters Association, Local 2707, 2012 NY Slip Op 01996, Appellate Division, Fourth Department

The collective bargaining agreement between the City of Oswego and the Firefighters Association provided that the City would pay the firefighters' employee contributions to the New York State Police and Fireman's Retirement System (PFRS). In addition, the City agreed to make the Retirement and Social Security Law Plan §384-d available to the firefighters.

In 2009, the Legislature enacted Retirement and Social Security Law Article 22, which provides, in relevant part, that all members of the PFRS who joined the PFRS on or after the effective date of Article 22 would be required to contribute 3% of their annual wages to the State retirement plan in which they were enrolled.

There was an exception set out in the statue, however. The exception provided that "[n]otwithstanding any provision of law to the contrary, nothing in this act shall limit the eligibility of any member of an employee organization to join a special retirement plan open to him or her pursuant to a collectively negotiated agreement with any state or local government employer, where such agreement is in effect on the effective date of this act and so long as such agreement remains in effect thereafter; provided, however, that any such eligibility shall not apply upon termination of such agreement for employees otherwise subject to the provisions of article twenty-two of the retirement and social security law" (see Chapter 504 of the Laws of  2009, Part A, §8)..

The City had appointed several firefighters after the effective date of Chapter 504. When  the City refused to contribute the 3% "employee contribution" toward their respective retirement plans, the Union filed a grievance and ultimately demanded arbitration.

The parties stipulated as to the exhibits to be submitted to the arbitrator and left it to the arbitrator to frame the issue. In his "opinion and award," the arbitrator concluded that the firefighters who were hired by the City after the effective date of Article 22 were eligible to elect to participate in the 384-d plan provided for in Section 26.1 of the agreement and that the City would be required to pay for the employees' contributions as negotiated under the terms of that agreement.

The City filed an Article 75 petition seeking an order by Supreme Court vacating the arbitration award in favor of Local 2707.  The court dismissed the City’s petition and granted the Local’ application to confirm the award.

In its petition the City had argued the award “was in direct contravention of the Retirement and Social Security Law, the Civil Service Law and the ‘strong public policies’ underlying those laws.” The Appellate Division, affirming Supreme Court’s ruling, held that the arbitrator’s award was not contrary to existing statutes, did not violate a strong public policy and was not irrational.

The crucial issue on this appeal, said the court, was whether the exception in Section 8 applies to the newly appointed firefighters. That issue turned on whether the terms of the expired agreement between the City and the Local was still in effect at the time the new firefighters joined the PFRS. Pursuant to what is known as the Triborough doctrine as embodied in Civil Service Law §209-a (1) (e), the Appellate Division held that "it is an improper practice" [subject to an exception not relevant here] for a public employer "to refuse to continue all the terms of an expired agreement until a new agreement is negotiated" (See Civil Service Law §209-a [1] [e]).

Noting that a new agreement between the City and the Union had not yet been negotiated and ratified at the time the new firefighters had joined the PFRS, the Appellate Division held that all of the terms of the expired agreement were still in effect as mandated by the Triborough Doctrine. Thus, the determination to apply the Section 8 exception to the subject firefighters does not "violate a defined and discernible public policy...or... create an explicit conflict with other laws and their attendant policy concerns."

The Appellate Division also addressed another issue: the determination of the New York State Employees’ Retirement System relied upon by the City when it declined to make the employee contributions on behalf of its newly appointed firefighters.

The court said although the Supreme Court’s decision, which it affirmed, “is inconsistent with the determination of the Retirement System” as set forth in its letter to the City dated March 2, 2010, "where, as here, the question is one of pure statutory construction, dependent only on accurate apprehension of legislative intent, judicial review is less restricted and there is little basis to rely upon any special competence or expertise of the administrative agency."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01996.htm

New York State 2012-2013 budget agreement announced

New York State 2012-2013 budget agreement announced
Source: Office of the Governor

On Tuesday, March 27, 2012, Governor Andrew M. Cuomo, Senate Majority Leader Dean Skelos and Assembly Speaker Sheldon Silver announced an agreement on the 2012-2013 New York State Budget.

 The key elements include:

Establishes the New York Works Task Force - The New York Works Task Force will coordinate capital plans across 45 agencies and authorities, oversee investment in projects and access to funding, and facilitate the creation of tens of thousands of jobs.

Prior to the New York Works initiative, there was no comprehensive state plan for the $16 billion in annual capital expenditures by 45 state agencies and authorities. In some cases, including with respect to projects by the Port Authority, the MTA, and the Department of Transportation, billions of dollars of taxpayer or commuter funds are being used to fund transportation plans in the same region with no coordination between the agencies. For the first time, the New York Works Task Force will develop a coordinated capital infrastructure plan among agencies and authorities. The Task Force, made up of leaders in finance, labor, planning and transportation will also recommend financing options for projects and methods to accelerate construction of critical infrastructure.

The New York Works Task Force will consist of fifteen members. Nine of the members will be appointed by the Governor and six by the Legislature. All major state agencies and authorities will participate in an implementation council to coordinate capital planning.

All New York Works projects will be posted on the web with real-time updates so that New Yorkers can track the progress of projects in their community. The full list will be posted online over the next several days.

Rebuild Roads and Bridges - The Budget funds the New York Works Program with $232 million in state capital funds and $917 million in new Federal funds for a total of $1.2 billion in new spending to accelerate repair, replacement and improvement of deficient roads and bridges. This funding is over and above the $1.6 billion already allocated this year to the core transportation capital program for roads and bridges. This program is in addition to the advancement of the Tappan Zee Bridge replacement project that will inject billions more into the regional and state economy.

Thirty-two percent of the state's bridges are rated deficient and forty percent of the state's pavement surface is rated deficient. The additional $1.2 billion in accelerated projects selected by the Department of Transportation will include $212 million to address bridge deck and structural replacement or rehabilitation needs on approximately 115 bridges, $250 million for more than 2,000 miles of low cost pavement preservation and pavement treatments, and $700 million for transportation projects of regional or statewide significance throughout the state that had been delayed due to resource constraints.

The New York Works Program's Accelerated Bridge and Pavement program will expedite projects of regional significance to immediately create jobs, address critical infrastructure needs, and achieve savings. The Accelerated Bridge and Pavement program represents a different way of doing business for New York State. Rather than executing 100 different contracts for 100 different bridges, projects will be consolidated under regional contracts – a more efficient process that will enable the state to complete critical projects on time and under budget.

Second Round of Regional Council Awards - Last year, Governor Cuomo created 10 Regional Councils that developed long term strategic plans for economic growth for their regions. These Councils were part of a process that awarded $785 million for job creation and community development. The Budget authorizes a second round of funding for the Regional Councils, including $220 million to implement regional strategic plans – $150 million in new capital funding and $70 million in tax credits from the Excelsior Jobs Program.

In addition, resources from a wide range of existing agency programs will be available to businesses and sponsors for economic development purposes that are consistent with Regional Council plans through the innovative Consolidated Funding Application. This process allows one-stop access for project sponsors to apply and compete for over $500 million in additional funding available through existing agency programs.

Buffalo Regional Innovation Cluster - The Budget includes funding for the first phase of a multi-year $1 billion economic development package for Buffalo. The Governor has challenged the area's Regional Council to develop a viable plan to create thousands of jobs and spur at least $5 billion in new investment and economic activity. The Budget includes $100 million for the first year, consisting of $75 million in capital and $25 million from the Excelsior Tax Credit Program.

New and Expanded Round of NY SUNY 2020 - The Budget includes $30 million of capital funding for a new round of the Governor's NYSUNY 2020 Challenge Grants. When combined with an equal share from SUNY, the University's 60 campuses, excluding the university centers, will compete for three $20 million challenge grants.

Energy SuperHighway Initiative - The Budget includes $16.2 million to New York State Energy Research and Development Authority for research and development programs and the development of the 2013 State Energy Plan which is part of the Governor's Energy Highway Initiative. The initiative will develop an action plan for both short-term and long-term actions that will facilitate billions of dollars in private investment in Energy Highway projects. The Task Force recommendations will be a core component of the 2013 State Energy Plan.

Funding the MTA Capital Plan to Improve Transit in Metropolitan New York - The Budget includes the Governor's plan to support full funding of the MTA with $770 million of direct funding from the state. The five-year MTA capital plan contains $22.2 billion for projects critical to transit in New York City, Long Island and the Hudson Valley, and that will produce tens of thousands of jobs. The first two years of the MTA capital plan were funded at $9.1 billion. The Budget will help allow the MTA to obtain the full $13.1 billion needed to achieve the five year capital plan and complete some of the largest construction projects in the history of New York. The MTA Capital Program will also continue to fund the four mega projects underway: 2^nd Avenue Subway, Eastside Access for the Long Island Rail Road, the Fulton Street Transit Center and the extension of the 7 Subway to the far Westside. The program will also fund new subway and rail cars, new energy-efficient "green" buses, station rehabilitation, enhanced communications and signals, new rail yards, as well as new elevators and escalators.

Repairing New York's Dams and Flood Control Infrastructure - The state’s Department of Environmental Conservation maintains 106 flood control projects, of which 91 have been rated "minimally acceptable" or "unacceptable" by the Army Corps of Engineers. Additionally, the Department owns 577 dams statewide. Of the DEC owned dams, DEC engineers classify at least 24 dams as "high" and "intermediate" hazard structures, where failure poses serious threat to human life or significant property damage. The New York Works Funds will designate $102 million, leveraging more than $100 million in matching funds, to repair aged and otherwise failing structures, including levees, flood walls, dams, pumps and channels. The $102 million will include $18.5 million to repair state-owned dams, $56 million to perform maintenance of flood control facilities such as levees, and $27 million to implement coastal hazard and inlet navigation maintenance projects, plus over $100 million in matching funds.

Rebuilding New York's State Parks - The New York Works Fund will provide $89 million, leveraging $143 million in total funding, to rehabilitate state parks, representing the single largest infusion in history of capital dollars for New York's parks. Currently, 83% of state parks are deteriorating. Projects will be funded in every region of the state, making improvements in 48 state parks and historic sites that serve 37 million visitors annually. This investment in New York's parks system will enhance the visitor experience and enable our state parks to reemerge after years of decline.

New York State Gaming Commission - Following the landmark agreement made earlier this month to begin the process of amending the state constitution to allow casino gaming in New York, the Budget enacts the Governor's proposal to create a New York State Gaming Commission, including the merger of the Division of Lottery and the Racing and Wagering Board. This reform reorganizes the state's gaming regulatory functions into a single oversight body. The new Commission would be comprised of seven members, five appointed by the Governor, and one apiece appointed by the Senate Majority Leader and the Assembly Speaker. The gaming industry constitutes a vital sector of New York's overall economy and contributes to economic development and job creation across the state. Under this agreement, the regulation of gaming will be conducted in the most efficient, transparent and effective manner possible, and eliminate unnecessary regulation redundancies. The new State Gaming Commission will help ensure that all gaming activity conducted in New York is of the highest integrity, credibility, and quality, and that the best interests of the public are served.

State Spending Growth Held to 2% - For the second year in a row, the Budget maintains two percent or less year to year growth in state spending, consistent with the tax cap on local governments. State Funds will total approximately $88.8 billion in 2012-13. The Budget achieves flat state agency spending through the ongoing redesign of agency operations to reduce duplication, redundancy and waste. Since Governor Cuomo took office, out year deficits have been reduced by a cumulative $72 billion since taking office.

All Funds Spending Reduced - All Funds spending will total approximately $132.6 billion, a decrease of $135 million from last year. This is the second consecutive year with a net reduction in All Funds spending, the first time this has happened in at least three decades.

Increase in School Aid: - The Budget includes a total of approximately $20.4 billion for school aid, including performance grants to reward academic improvement and school district efficiencies. This represents an increase of $805 million in total education spending, with most of the allocated increase targeted to high needs school districts. The budget includes a total of $125 million to be allocated for performance grants, including $50 million in continuing payments to the school districts who will receive awards in the first round of grants, and an additional $75 million in awards to a second round of school districts.

Interchangeability - To achieve greater efficiency in government operations and improve performance, the Budget enacts the Governor's proposal to ensure fiscal flexibility in order to expedite government consolidation and streamlining. The interchangeability provisions give the state the authority to move certain funds between state agencies that will save money in back office functions such as business services, information technology and call centers. This will allow the state to move functions from one state agency to another to improve efficiency, ensure better performance, and reduce costs for taxpayers. The transfers will not be used to alter or shift programmatic functions of the agencies.

Transforming State Procurement Process - The Budget includes new measures to allow state agencies to purchase common goods and services through centralized contracts. The Office of General Services (OGS) will be able to buy in bulk – from pens to cars – harnessing the state's purchasing power to save $100 million in 2012-2013 and a projected $755 million over five years. The budget further eliminates the duplicative and wasteful review of statewide centralized contracts, accelerating the opportunity for agencies to use the new centralized contracts and achieve savings as soon as possible. Local governments and not-for-profits will be able to participate in the new centralized contracting process, increasing the state's purchasing power, while passing down reduced costs to localities and multiplying the savings OGS will achieve for the taxpayers.

Consolidation - In addition to creating a New York State Gaming Commission through the merger of the Division of Lottery and the Racing and Wagering Board, the Budget includes transferring the management and operations of the Belleayre Ski Center from the Department of Environmental Conservation (DEC) to the Olympic Regional Development Authority (ORDA). Given ORDA's expertise in managing other ski centers (Gore and Whiteface), Governor Cuomo proposed this transfer to improve operations and opportunities for tourism at Belleayre Mountain.

The Budget further includes the elimination of 25 boards and commissions that are no longer active or whose missions have been completed or become redundant. A list of affected entities is here: http://www.governor.ny.gov/assets/documents/EliminatedAgenciesandCommissions.pdf.

State Relief for Local Medicaid Expenses - The Budget provides significant mandate relief in Medicaid spending for all counties and New York City. The Budget includes a state takeover of growth in the local share of Medicaid costs and implements a phased takeover of local government Medicaid administration expenses. In 2013-14, local government Medicaid growth will be reduced to two percent, and then reduced by an additional one percent annually over the subsequent two years so that in 2015-16, counties and New York City will no longer have to contribute toward the growth of Medicaid expenses. The takeover of the three percent Medicaid growth factor will save counties and New York City $1.2 billion over five state fiscal years. The phased takeover of local government administrative costs of Medicaid will accomplish statewide economies of scale, lead to associated savings and help New York achieve reforms proposed at the State and Federal levels.

Reform Teacher Disciplinary Hearings

The Budget includes several reforms to the teacher disciplinary process. The reforms include allowing the State Education Department to set reasonable limits on the costs of teacher disciplinary hearings, disqualify hearing officers who fail to comply with statutory deadlines and allow the State make use of new technology to help reduce the cost of the hearing.

Medicaid Spending - The Budget continues the two year appropriation structure and limits Department of Health Spending to four percent, commensurate with the Medicaid spending cap. In addition, the Budget proceeds with the Medicaid Redesign Team’s recommendations, including investment in affordable housing for high cost populations, enhancements in essential benefits and relief to essentially community providers.


Public Assistance - The Budget provides funding for core supportive services for needy populations and implements measures to improve program performance. Governor Cuomo secured additional funding through the Federal Temporary Assistance for Needy Families program, allowing for an increase of 5% in the public assistance grant effective July 1, 2012, to be followed by an additional 5% increase on October 1, 2012. These are the final increments of a multi-phase increase in the public assistance basic grant, which has not been increased since 1990.

Community Colleges - The Budget includes an additional $31.3 million in support for local community colleges, raising base aid from $2,122 to $2,272 per full-time equivalent student. Community colleges are important economic drivers that educate students, retrain workers, and partner with local businesses. This additional support will allow community colleges across the state to expand class offerings, keep tuition affordable, and hire additional faculty.

Higher Education - Consistent with the provisions in the NYSUNY 2020 Challenge Grant Program, the Budget maintains General Fund operating support for SUNY and CUNY colleges at prior-year levels. The Budget also accommodates the authorized 2012-13 tuition increases by providing $113.2 million in additional spending authority for SUNY and $66.6 million for CUNY.

Juvenile Justice – Close to Home - The Budget launches Governor Cuomo's Close to Home Initiative that will help the state reduce crime, improve outcomes for youth and the communities in which they live, and increase the efficiency of the juvenile justice facility system. The Close to Home legislation allows New York City to take responsibility for the care of lower risk youth who come from the City. While youth committed to secure level juvenile justice facilities will continue to be in State custody and facilities, New York City youth currently in State non-secure and limited secure facilities will be transferred to City-administered programs and facilities. Youth from New York City needing this level of care going forward will be in the custody of New York City and served in settings that are appropriate for their educational, mental health, substance abuse and other service needs, without compromising public safety. New York City will take over this responsibility from the State with regard to youth in non-secure placements no sooner than September 1, 2012, and for youth in limited secure placements no earlier than April 1, 2013, following the approval by the State of comprehensive implementation plans for each level of care.

Housing Assistance - The Budget provides $14.3 million for 208 urban and rural community-based organizations that to help create additional home ownership opportunities and assist with the development and management of affordable rental housing.

Foreclosure Relief Unit - The Budget provides $9 million for the continuation of mortgage foreclosure counseling services through Homes and Community Renewal, with additional services financed with proceeds of the National Mortgage Servicing Settlement Agreement. In addition, the Department of Financial Services will establish a new Foreclosure Relief Unit to provide counseling and mediation services to help New Yorkers stay in their homes.

Increased Resources to Enhance Bus Inspections - The Budget gives DOT the ability to increase bus inspections and improve passenger safety. DOT will be able to conduct an additional 5,000 to 7,000 roadside inspections with funding agreed to in the budget. Currently, bus operators undergo two routine inspections per year by DOT, regardless if they meet DOT standards or not. This law will enhance public safety by allowing DOT to conduct follow-up inspections if an operator fails any of its previous inspections.

Office of New Americans - The Budget establishes an Office of New Americans within the Department of State to support efforts to assist legal permanent residents to better participate in the state's economy and civic life. The Office of New Americans will focus on expanding access to English language education services, promoting U.S. citizenship and civic involvement, and expanding business opportunities for new American business owners.

Translation Services for Pharmacy Prescriptions - This Budget requires the State Education Department and the Department of Health to issue regulations that will require chain pharmacy stores to provide oral and written translation services to customers with limited English proficiency who are filling prescriptions. Such critical services will ensure that these customers fully understand the nature of the medication they're receiving and the instructions for its use so that a language barrier does not become a threat to their successful treatment.